HKSAR v. Leung Kwok Hung

HCCP 136/2021

[2021] HKCFI 1227

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 136 OF 2021

__________________________

__________________________

__________________________________

REASONS FOR DECISION

__________________________________

DISCUSSION

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]

6.Mr Pun SC, appearing on behalf of the Applicant, submitted that the Applicant had been on bail since 7 January 2021 and was fully co-operative with his reporting condition.  He knew before arriving at the police station on 28 February 2021 that he would most probably be charged and he still appeared at the police station.  Mr Pun SC submitted, therefore, it is highly unlikely that the Applicant if granted bail, would abscond in any way.        

7.Mr Pun SC also submitted that the Applicant had never advocated for Hong Kong independence, colluded with any foreign country or requested for sanctions against the PRC Government or the HKSAR Government.  His client also had not signed the online declaration which many of the participants who had participated in the Primaries had done. The Applicant lost in the election and he did not submit his nomination form for election to the Legislative Council.  It was unlikely to have been successful in any event as the Applicant was of the view that he would be disqualified anyway.  So Mr Pun SC submitted that the Applicant is unlikely to commit any offence against national security if granted bail.

8.Furthermore, Mr Pun SC submitted that as far as the Applicant’s personal background is concerned, his client had recently got married and suffers from coronary heart disease, so he would settle down with his new wife.  His commitment to Hong Kong is strong and so he is unlikely to leave Hong Kong and abscond.  

9.Also, Mr Pun SC said that looking at the Applicant’s past action, he believes in the Rule of Law, as can be evidenced from the many constitutional challenges that he had made in the past.

10.Ms Yang, inter alia, submitted that attached to the Applicant’s Primaries nomination form dated 20 June 2020 is a pamphlet entitled “五大訴求 缺一不可 抵抗惡法 您我同行”[6]. Ms Yang submitted that the pamphlet clearly showed the Applicant is firmly against the HKSAR Government.  On 24 June 2020, the Applicant also made a speech[7] where he said amongst other things:

“… 35 席以上既席位，係極之重要。我哋係要令到特區政府嘅苛政冇辦法行，…”

11.Ms Yang also submitted that the Applicant was the vice chairman of the League of Social Democrats (“LSD”) and the LSD had published an article saying that they would support the Scheme and amongst other things would vote down the budget indiscriminately in order to achieve the ultimate goal of mutual destruction by provoking ruthless suppression by the Central People’s Government which would be met by foreign sanctions.[8]

12.The Applicant also repeated his stand in the election forum[9] on 30 June 2020.  On 3 July 2020, the Applicant advocated for the Primaries on his personal Facebook page and called for “unwavering insurgence against the authorities”.[10]  The Applicant repeated his hostility against the Government on 9 July 2020 and against the NSL[11].  Later on 15 July 2020, the Applicant was still publishing in his Facebook page his pledge to use his power to fight against the regime.[12]    

13.Therefore, Ms Yang submitted that the Applicant, being so determined and resolute in his stand against the Government and the NSL, must fail to overcome the first threshold as laid down by the CFA in HKSAR v Lai Chee Ying.  Even if he managed to overcome the first threshold, the Applicant must fail on the second threshold because his risk of absconding is high, given his long history of social activism and international support.  Also his risk of reoffending is high.

14.In order for the Applicant to overcome the first threshold, Anthea Pang J pointed out in HKSAR v Lai Chee Ying[13] that this Court has to make a “predictive and evaluative exercise”.  On all the materials which had been placed before me, including counsel’s submissions, both written and oral,  including documents or materials which may not be admissible at trial, in order for me to make a predictive evaluation.

15.I can only say that based on the materials before me, I cannot find sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if granted bail.  So I find that the Applicant had failed to overcome the first threshold.      

16.Therefore, his bail application was refused.   

Mr Maggie Yang, DDPP 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