HKSAR v. Wan Siu Kin Andrew (尹兆堅)

HCCP 141/2021

[2021] HKCFI 1255

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 141 OF 2021

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

Date of Hearing: 23 March 2021

Date of Decision: 23 March 2021

Date of Reasons for Decision: 28 May 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 was refused bail by the learned Chief Magistrate and he therefore, applied to this Court for bail.

7.Mr Harris SC acting on his behalf submitted that the Applicant’s voting record in the Legislative Council showed that he was not always against the Government, and he made many constructive contributions in his time.  He had sat on various committees and had passed several integrity checks.  It was unlikely that his intention in joining the Primaries was to paralyse the Government.       

8.Mr Harris SC further submitted that what the Applicant may have said in his election campaign were purely electioneering rhetoric. The Applicant was so trusted by the Hong Kong Government that he was invited to continue to serve in the Temporary Legislative Council when the election was postponed due to the pandemic.  Mr Harris SC pointed out that the background of the Applicant was that he has strong ties to Hong Kong, his family is in Hong Kong and therefore, it is unlikely he would not surrender to custody as the Court may appoint.       

9.Mr Lo on behalf of the Respondent submitted that,  even after the promulgation of the NSL, the Applicant continued advocating for Hong Kong people to “…向極權說不”[6]. As Mr Lo submitted the Democratic Party of which the Applicant was vice-chairman, had announced outside the police headquarters at the apex of the social disturbance on 17 September 2019, the formation of a taskforce calling for international sanctions towards officials who allegedly permitted “excessive police violence”.[7] Also from the computer of the Applicant were recovered propaganda documents calling for the liberation of Hong Kong and the independence of Hong Kong.[8]      

10.Therefore, Mr Lo submitted the Applicant had demonstrated a persistent and strong devotion to the agenda of “subversion and secession”.  And with his strong political connection and social activism, it is of great concern to the Respondent that the Applicant will continue to commit acts capable of endangering national security if bail is granted. 

11.Mr Lo also submitted that even after the Applicant was refused bail on 4 March 2021, his personal page on an American paid subscription service platform continue to operate, where supporters after paying a fee, could access various exclusive contents and the latest entry was published on 17 March 2021.[9]

12.Mr Harris SC in reply submitted that the Applicant did not mean to paralyse the Government by participating in the Primaries, and that he is a well-respected person in the community as can be evidenced from the many letters from the community and former Legislative Council members.  It would be unfair to withhold bail because he may have committed other offences

13.As has been stated by Anthea Pang J in HKSAR v Lai Chee Ying, I have to make a “predictive and evaluative” exercise at this stage, of all the materials before me, whether the Court has sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if bail is granted.

14.Having considered the submissions of Counsel, both oral and written, and all the documents attached to the written submissions, I do not have sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if bail is granted.

15.Therefore, the bail application was refused.   

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

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