Secretary for Justice v. Ng Kin Wai (伍健偉)

HCCP 117/2021

[2021] HKCFI 772

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO. 117 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.The Applicant submitted that apart from the election of the 35+ Primaries manifesto, the Respondent’s idea for Hong Kong independence and secession can be seen in Enclosures 8 and 9 which demonstrated his clear determination to further his secession ideas and for Hong Kong independence. 

7.Ms Yang therefore submitted that in considering the first threshold, the Court is carrying out “a predictive and evaluative exercise”[6] as stated by Anthea Pang J at paragraph 21:

“21. …while it is entirely correct … to say that one’s financial might, political ideology, and associations are not, per se, suggestive of the commission of any offence, it could not be gainsaid that such are relevant matters in the assessment. For instance, it may be more difficult for one with limited means to organise the prohibited acts than one with the financial means. Likewise, one who is determined and resolute may be more readily disposed to committing the prohibited acts than one who is merely drifting along and lacks such enthusiasm. …”

8.So Ms Yang submitted that with the Respondent’s strong political connection and long social activist history, the Court should consider, therefore, that there are sufficient grounds to believe that the Respondent will continue to commit acts or offences against national security if granted bail. 

9.Mr Pang SC for the Respondent, submitted that, Enclosures 8 and 9 does not further the prosecution case, and now that the Legislative Council election had been indefinitely postponed, the risk of committing similar act is non-existent.  And Mr Pang SC submitted that the fact that the Respondent may have had strong political connection and a long social activist history, should not be confused with the risk of the Respondent committing offences endangering national security, and he pointed to the fact that Article 4 of the NSL specifically protects existing rights and freedoms including freedom of speech, of the press, of publication, of association, of assembly, of procession and of demonstration. So therefore the fact that someone may have strong political and social views may not mean that he intends to endanger national security.  Now that the NSL provisions had been made clear, it is unlikely that the Respondent would do any acts to endanger national security.

10.Mr Pang SC also noted that the warnings given by the Hong Kong Government and the Central Liaison Office had failed to give reasons and that the warnings were not clear. 

11.It is not for me at this stage to consider the various arguments in relation to the offence charged.  It is for this Court to consider the relevant material, including counsel’s submissions and bail conditions offered, to make a predictive evaluation as to whether the Respondent if granted bail, that there are sufficient grounds to believe that he would continue to commit acts endangering national security under the NSL.     

12.At this stage, from the Enclosures 8 and 9, they show a “clear determination” as Ms Yang said to further his idea for Hong Kong Independence and therefore, having evaluated the material before me, I was of the view that there are sufficient grounds for believing that the Respondent will continue to commit acts endangering national security if bail is granted to him. 

13.So the application is allowed and his bail is revoked.       

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

Mr Robert Y.H. Pang SC and Ms Yantl S.C. Sze, instructed by C&Y Lawyers, for the Respondent