HKSAR v. Sham Tsz Kit

HCCP 135/2021

[2021] HKCFI 1331

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 135 OF 2021

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REASONS FOR DECISION

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1.This is an application for bail in relation to the Chief Magistrate’s refusal of bail 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 Respondent is that this was a massive and well-organised scheme by the Applicant and 46 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 Respondent 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 Applicant and others still carried on with their scheme. 

3.It is submitted by the Respondent that had the Election not been postponed due to public health concerns, the conspiracy would have been carried out to fruition.  If granted bail it is of concern that sufficient grounds exist for not believing that the Applicant 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]

DISCUSSION        

6.The Applicant, together with 46 other Defendants, faces one count of “conspiracy to commit subversion”, contrary to Article 22(3) of the NSL, and sections 159A and 159C of the Crimes Ordinance, Cap 200. 

7.The Applicant applied for bail before the learned Chief Magistrate and was refused bail on 4 March 2021.  He therefore applied to this Court for bail.  The application was heard on 29 March 2021 and the application was refused.  Here below are brief reasons for the ruling.   

8.Mr Pun SC on his behalf, submitted that the Applicant is aged 33 and had been very active in the LGBT community.  In 2013 he married his partner who is a Hong Kong resident.  He therefore, has no interest at all in leaving Hong Kong. Mr Pun SC also stressed that due to the Legislative Council (“LegCo”) election being postponed, the Applicant cannot be considered to in any form continue to commit acts against national security, and in any event, it is anticipated that he will be disqualified for any LegCo election. 

9.Mr Pun SC stressed that the Applicant never called for Hong Kong independence and never colluded with foreigners, nor called for sanctions against Hong Kong or Mainland officials.  The Applicant never signed the online declaration when he participated in the 35+ Primaries.    

10.Mr Pun SC submitted that the Applicant therefore, easily passed the first threshold as laid down by the Court of Final Appeal in HKSAR v Lai Chee Ying.  As far as the second threshold is concerned, there is no risk of the Applicant of absconding or reoffending.        

11.Ms Yang submitted that from the very beginning in a pamphlet attached to the Primaries nomination form, the Applicant had already stated his firm belief that after gaining the majority in LegCo: “以獲得全面否決權，令政權需要答應落實五大訴求。”  [6]

12.Further, on the 22 June 2020, Citizen News (眾新聞) quoted the Applicant, as stating that he did not sign the online declaration because his Party, the LSD (社民連), had never voted in favour of the budget since having obtained seats in LegCo. 

13.Ms Yang also referred to the Applicant’s speech in Video A where he said, inter alia, :

“… 好明顯未來一屆選舉有三條路線，第一個就係公民社會即抗爭，第二條路線係議會嘅抗爭，第三條路線係國際連線，喺國際上面發出香港人嘅吶喊。… 我哋要顯示出比全世界嘅人知，我哋嘅議會係團結一致，我哋先至有能力係去對抗來自中共嘅壓迫…”

14.Furthermore, in Video B on the 29 June 2020 when the Applicant attended the election forum for the Kowloon West constituency:

“… 我覺得最重要嘅一樣嘢就係，未來最恐佈嘅係《國安法》，要製造寒蟬效應，到冇咗疫情，香港人仲夠唔夠膽行出嚟，…

其實攬炒有兩個意思，一個意思就係中共打到嚟，我寧願同中共玉石俱焚，另一個意思就係，我主動去撩中共打交，要攬炒佢，我唔贏唔緊要，最緊要中共輸，即係其實有兩個意思㗎，…”

15.Subsequently, the Applicant won the Primaries which was held between 11 July 2020 and 12 July 2020. 

16.On 15 July 2020, the Applicant published in his personal Facebook page, the LSD Party declaration, against the PRC and the HKSAR Government. Ms Yang also noted, on 22 July 2020, in furtherance of the agreement of participants in the 35+ Primaries, the Applicant also submitted his LegCo nomination form[7].     

17.Ms Yang also submitted, the Applicant always shows his determination in spreading resentment towards the PRC and the HKSAR Government. On 16 April 2020, in a video[8] he said:

“…真正喺度攬炒緊香港嘅，係你共產黨﹗你唔再干預香港嘅事務，你唔再踐踏香港人嘅人權，無香港人同你攬炒。”

18.Further, on 22 May 2020, in another video published online in a press conference[9], the Applicant, amongst other things, accused the police and even the judiciary of being unjust and oppressive:

“… 係呢一個咁樣既國安法底下，捉入香港既法庭依家都未必保障到香港人呀。… 係香港既法庭，我地都未必可以見到公義既彰顯。”

19.On 1 January 2021, in an online phone-in programme co-hosted by the Applicant[10], he openly stated that the 12 absconders who were arrested in the PRC were wrongly or illegally sentenced in the PRC.  The Applicant reiterated his view to the audience that they should continue to press for “五大訴求”.  And even as late as 28 February 2021, in front of the police station before being charged for the present offence, the Applicant stated his firm belief that the fight for “五大訴求” would continue.   

20.Therefore, Ms Yang concluded in her submission that it is clear that the Applicant was resolute and determined even up to as late as February 2021 in public speeches, he was stating his determination and resolution to further spread his “五大訴求” agenda and therefore, Ms Yang submitted that the Applicant had filed to pass the first threshold as laid down by the CFA in HKSAR v Lai Chee Ying in relation to bail.

21.Mr Pun SC in reply, submitted that what the Applicant said prior to the election what pure election rhetoric and there is no indication whatsoever that he had any contact with international element.  And that what the Applicant said in Video D was not said against the NSL but merely expressing his concern about this new feature, which was introduced into the Laws of Hong Kong, which had unsettled him.  Therefore, Mr Pun SC submitted that the Court can be assured that the Applicant will not continue to commit acts against national security if granted bail. 

22.I have carefully read the written submissions of both counsel and also the documents attached there too.  And having seen and read all the materials before me, I agree with Ms Yang that it shows a determined and resolute young man who, at the door of the police station in February this year, still advocated his determination that the Government accede to the five demands.  

23.I have also considered the bail conditions offered.  However, doing my “predictive and evaluative” exercise, I do not have sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if granted bail. 

24.So I concluded that the Applicant had failed to pass the first threshold as laid down by the CFA in HKSAR v Lai Chee Ying.

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

Mr Hectar Pun SC leading Mr Anson Wong Yu Yat, instructed by Chan & Chan, for the Applicant