Secretary for Justice v. Wong Pik Wan

HCCP 113/2021

[2021] HKCFI 771

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 113 OF 2021

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Before: Hon Toh J in Chambers (Open to Public)

Date of Hearing: 11 March 2021

Date of Decision: 11 March 2021

Date of Reasons for Decision: 1 April 2021

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REASONS FOR DECISION

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1.This is an application to review the Chief Magistrate’s granting of bail on 4 March 2021 in relation to a charge “conspiracy to commit subversion” contrary to Article 22(3) of the National Security Law[1] (“NSL”) and sections 159A and 159C of the Crimes Ordinance, Cap. 200.

2.In brief, the assertion of the Applicant is that this was a massive and well-organised scheme by the Respondent and others to achieve a common criminal purpose to undermine the “proper functioning of the Legislative Council so as to paralyse the operations of the HKSAR government, eventually compelling the Chief Executive of HKSAR to resign”.  The Applicant further submitted that despite the public statement of the Government that the “organization, planning or participating in the ‘35+’ Primaries”[2] and the statement on the 14 July 2020 by the Liaison Office of the Central People’s Government in HKSAR that the Primaries are illegal as having fallen foul of the NSL, the Respondent and others still carried on with their scheme. 

3.It is submitted by the Applicant that had the Election not been postponed due to public health concerns, the conspiracy would have been carried out to fruition.  That if granted bail it is of concern that sufficient grounds exist for not believing that the Respondent will not continue to commit acts endangering national security.[3]　

4.The applicable principle as reiterated by the CFA judgment in HKSAR v Lai Chee Ying[4] at paragraph 70(b) was:

“NSL 42(2) creates a specific exception to the HKSAR rules and principles governing the grant and refusal of bail, and imports a stringent threshold requirement for bail applications.”

5.The CFA judgment also elucidated that in applying NSL 42(2), the judge must first decide if there are sufficient grounds for believing that the suspect or defendant will not continue to commit acts endangering national security (“the prohibited acts”) and in doing so “the judge should consider everything that appears to the court to be relevant to making that decision including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial”.[5]

Assessment

6.It was submitted by Ms Yang that the Respondent faces a serious charge the gravamen of the offence, being the 1^st Defendant’s destructive manifesto in 10 steps to “mutual destruction”.  The aim was to bring down the Hong Kong Government to undermine the Government by manipulating the electoral system by holding the 35+ Primaries.  Once elected into the Legislative Council (“LegCo”), the candidates would refuse to pass the budget for public expenditure to the detriment of Hong Kong people.  It is asserted by the prosecution that all the Defendants had joined in this conspiracy and that the Respondent was one of them because she has signed the nomination form for the Primaries. Therefore the Applicant submitted that the Respondent should not be granted bail because there are insufficient evidence for believing that she will not continue to commit an offence under the NSL.   

7.Mr Harris SC, appearing on behalf of the Respondent, submitted that it is clear, from the public forum video that the Applicant had played in Court, that she was being harassed for not supporting the principle of “laam chau” (mutual destruction).  Mr Harris SC also pointed out that the Respondent had a long voting record in LegCo, which included voting for the Government in many of the motions.  She had also, over time, constructively served the public by being a member of the Police Complaints Council and also sitting on the Council of the Chinese University of Hong Kong, and a further proof of the trust the Hong Kong Government had in her, she was asked to join the Provisional LegCo in August 2020.  Finally Mr Harris SC also pointed out that she did not sign the online declaration as other candidates had done. Although admittedly she did say that she would do so if the 1^st Defendant advised her to do so. 

8.As was pointed out by Anthea Pang J in the case of HKSAR v Lai Chee Ying[6], it is “a predictive and evaluative exercise” that I must do, taking into account as the Court of Final Appeal pointed out, all the materials before me including submissions of counsel, documents and videos, make an evaluation as to whether under the first threshold that I can believe that the Respondent will not continue to commit acts endangering national security.  Having weighed all the materials before me, I am satisfied there are insufficient grounds for believing that the Respondent will continue to commit acts endangering national security if bail is granted to her. 

9.And under the second threshold is whether to grant bail under the Criminal Procedure Ordinance, Cap. 221, the main consideration is whether she will surrender to custody at the appointed time, having taken into account, the seriousness of the offence, strengths of the evidence, risk of absconding or re-offending.  I am satisfied that the condition which the learned Chief Magistrate had imposed, will ensure that she will surrender to custody at the appointed time. 

10.Therefore, the application of the Applicant is refused.          

Ms Maggie Yang, DDPP,  Mr Andy Lo, SPP and Ms Cherry Chong, PP of the Department of Justice, for the Applicant

Mr Harris SC, Mr Jeffery Tam and Ms Wong Ying Kei Vivian, instructed by Ho, Tse Wai & Partners, for the Respondent