HKSAR v. Wan Yiu Sing Edmund

HCCP 143/2021

[2021] HKCFI 1261

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 143 OF 2021

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REASONS FOR DECISION

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1.The Applicant was charged with 4 counts of “Doing an act with a seditious intention”, contrary to section 10(1)(a) of the Crimes Ordinance, Cap 200.

2.The Applicant was a professional online radio host.  He hosts his own internet channel and also hosts and speaks in a number of online radio programmes. The Applicant also circulated his programmes on various online platforms, his own website, his YouTube channel and his Patreon account.

3.The Applicant was initially arrested for other charges on 21 November 2020 and released on police bail.  On 7 February 2021, he was re-arrested for the present offences and was unable to attend the hearing on the following day due to illness.  He appeared in Court on 10 February 2021 and his bail application was refused by the learned Chief Magistrate.  The case is adjourned to 10 May 2021.      

4.After hearing submissions from both counsel and considering all the materials before me, I had concluded that this was not a suitable case for bail and here below are my reasons.       

5.It is clear from the assertion of the prosecution that the Applicant, through his fundraising scheme, was very active in promoting his contact with organizations in Taiwan, mainly, the Presbyterian Church in Taiwan (“PCT”) and Judicial Reform Foundation (“JRF”).  Ms Yang submitted that it was clear from the websites of these 2 organizations, that they were advocating for the international community to impose trade restrictions or sanctions on the Government of the PRC and the HKSAR Government, in order to press for the release of several arrested persons for national security offences. 

6.The Applicant advocated through his programmes for donation. Between February and November 2020, a total of about HK$13 million were deposited into various accounts provided by the Applicant for the fundraising scheme.        

7.It is also submitted by Ms Yang that HK$9 million of that amount were then routed to the Applicant’s personal account and a joint account held by him.  Subsequently, part of these funds were remitted to the bank account of PCT in Taiwan.  It is also submitted by Ms Yang that there is evidence to show that some of the money was paid to individuals who had fled from Hong Kong and had jumped court bail.      

8.The Respondent asserted that these acts continued even after the promulgation of the National Security Law[1] (“NSL”) on 30 June 2020.  The Applicant had made clear through his various postings that his ultimate aim of this fundraising scheme was to contribute to overthrowing the Community Party of China. 

9.Ms Yang submitted that in relation to Charge 1 on the Applicant’s programme on 8 August 2020, he repeatedly requested for foreign countries to impose further sanctions against the officials of the HKSAR Government.  This programme went viral on YouTube and had been watched by many persons. 

10.In relation to Charge 2, it is alleged that on 15 August 2020, the Applicant spoke in a programme and incited the audience to revolt against the PRC Government and/or the HKSAR Government, and to evict the Chief Executive.  Again this programme went viral on YouTube and had been watched many times. 

11.For Charge 3, in a programme on 5 September 2020, it is asserted the Applicant incited the public to participate in the unauthorized assembly on 6 September 2020 to protest against the postponement of the Legislative Council Election 2020.  The Applicant further stated that Hong Kong people, like the Inner-Mongolian people, was an ethnic entity, and told his audience to disregard Chinese nationalism.  Again this programme went viral on YouTube and was seen by many people. 

12.In relation to Charge 4, the Applicant is alleged to have, in a programme on 10 October 2020, degraded the National Flag of the PRC and expressed support for the Taiwan Flag.  He spoke against the PRC Government, accused them of reigning in terror and depriving its nationals of all human rights.  That programme also went viral on YouTube and was seen many times. 

13.Mr Dykes SC submitted that the charges against the Applicant were laid under the Crimes Ordinance and not under the NSL.  He submitted that there is no evidence that the Applicant would continue to commit crimes against national security if granted bail because the police could shut down all his online platforms, and also the Court can make it a term of the bail condition that he abstained from participating in any online platform or radio programme. 

14.Without a doubt, if I should consider bail under the NSL, I would have to consider the two thresholds in relation to bail as laid down by the CFA judgment in HKSAR v Lai Chee Ying[2]. In considering the first threshold, I have to make a predictive and evaluative exercise as Anthea Pang J had rightly pointed out in the case of HKSAR v Lai Chee Ying[3]. It is only if the Applicant had passed the first threshold, that I consider the second threshold which would be consideration under the Criminal Procedure Ordinance, Cap 221.        

15.Although Ms Yang pointed out that the offences which are alleged against the Applicant was committed against national security and therefore NSL would apply when considering bail, I would give the benefit of the doubt to the Applicant in view of the fact that he was charged under the Crimes Ordinance and not under the NSL. 

16.In considering bail under the Criminal Procedure Ordinance, the most important factor is for the Court to consider whether the Applicant may fail to surrender to custody as the Court may appoint.  One of the factors to consider is the seriousness of the charge, the strength of the evidence and also the risk of absconding. 

17.Firstly, on the assertion of the prosecution, the evidence appears strong and the charges are very serious.  So the temptation of absconding is extremely high, particularly in view of the fact that the Applicant appears to be well connected to various organizations in Taiwan. Therefore, the temptation to not surrender to custody as the Court may appoint is extremely high.  So on that basis, I do not consider that this is a suitable case for bail. 

18.If I am wrong and I should consider the bail under the NSL, and therefore, the two thresholds laid down by the Court of Final Appeal in HKSAR v Lai Chee Ying, I am of the view that having read the materials that had been placed before me, and having listened to counsel and read their submissions, I am of the view that having done the predictive and evaluative exercise based on the materials placed before me, there are not sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if bail is granted.

19.So in any event, the Applicant would have failed the first threshold.         

Ms Maggie Yang, DDPP and Ms Stella Lo, PP of the Department of Justice, for the Respondent

Mr Philip Dykes SC and Ms Tina Mok, instructed by Fan Wong & Tso, for the Applicant