HKSAR v. Chung Kam Lun

HCCP 137/2021

[2021] HKCFI 1473

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 137 OF 2021

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

Date of Hearing: 31 March 2021

Date of Decision: 31 March 2021

Date of Reasons for Decision: 3 June 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 one of 47 Defendants, with one charge 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 was denied bail by the learned Chief Magistrate, and that his application for bail before me.  After hearing submissions from both counsel, and reading the material before me, I concluded that there were insufficient grounds for believing that the Applicant will not continue to commit acts endangering national security and here below are some of my reasons.

8.Mr Ma submitted that, while it is true that the Applicant was the vice-convener of “Power for Democracy”.  The Applicant, together with the convener, the 3^rd Defendant, assisted the Primaries by providing coordination amongst participating candidates, the recruitment of volunteers, engaging in publicity work for crowdfunding and preparing all equipment and logistics arrangements for the Primaries. Admittedly, the Applicant’s involvement was in the logistics and publicity. On 9 June 2020, the Applicant, together with the 1^st Defendant to the 3^rd Defendant, did hold a press conference, in which the Applicant did say that he would locate venues for polling stations.  The Applicant did, together with others, continue to organise the Primaries, scheduled for 11 and 12 July 2020.

9.Mr Ma submitted that the Applicant did not take part in the Primaries as a candidate, and there is no allegation that he was personally involved in the crowdfunding for the Primaries.  Mr Ma also pointed out that certain Legislative Council members and even Mr Ronny Tong, an Executive Council member, at the time saw nothing wrong with the holding of the Primaries.

10.Mr Ma submitted that there will be no occasion for the Applicant to commit acts or continue to commit acts against national security as the “Power for Democracy” group had been dissolved on 27 February 2021.  The Applicant had resigned from his membership of the Neo Democrats.  It is also submitted that the Applicant had been a District Councilor since 2012 and had positive good character, and that if granted bail, he wants to have spent more time with his baby daughter, and would undertake to close down all digital media and concentrates on being the breadwinner for his family.

11.Mr Lo submitted that, the Applicant had played a critical role in the “Power for Democracy” group as he was one of three signatories to operate the bank account of the group.  And contrary to what Mr Ma submitted, Mr Lo pointed out that, on 9 June 2020, the Applicant had published a post on his personal Facebook, advocating for the Primaries and called for financial support in the sum of HK$3.5 million.[6]

12.It was also the Applicant who sets out the link for the American crowdfunding website (i.e. https://gogetfunding.com/democrals35plus) and the Power for Democracy’s Hang Seng Bank account in the same Facebook post.  It is also the allegation of the Respondent that the funds from the American bank account through their crowdfunding website, would then be transferred to a third party local bank account in Hong Kong.  Eventually the fund will find its way into the Power for Democracy’s bank account.  This, the Respondent alleges, is a typical pattern of “layering” in a case of money laundering to avoid detection by the police.

13.Mr Lo therefore, submitted that the role of the Applicant in the Power for Democracy group was pivotal and one of great responsibility.  The Applicant had also used his District Council office as one of the poll stations for the Primaries held between 11 and 12 July 2020.[7]  

14.The Applicant had also announced on 11 July 2020 in his Facebook page that “enhanced security/encryption measures had been employed in response (to police investigation)”[8]. So Mr Lo submitted that it is clear that there are sufficient grounds for believing and suspect that the Applicant will continue to commit acts endangering national security if granted bail.

15.Also, Mr Lo submitted that the Applicant had strong political connection and influence, and even when announcing the birth of his daughter on 21 June 2020, he published an article in his Telegram channel where he announced “staunch support for the protesters and their conduct (including their violence acts)”[9].

16.The Applicant demonstrated “determined and resolute”[10] attitude can also be seen in the video interview played in Court which was published on YouTube on 26 November 2020.[11]  So Mr Lo submitted, therefore, that the Applicant had demonstrated most verbally that he, if granted bail, will continue to commit acts against national security.

17.Mr Ma replied, said that although the Applicant was one of the signatories for the “Power for Democracy” group’s bank account, he had never signed any cheque.  In Video B he was merely expressing his own opinion.

18.In considering whether the Applicant had passed the first threshold as laid down by the Court of Final Appeal in the case of HKSAR v Lai Chee Ying, I have to do a “predictive and evaluative” exercise as Anthea Pang J had indicated in HKSAR v Lai Chee Ying[12].

19.The evaluation and prediction I do, is based on counsel’s written and oral submissions, and also all the information and materials which had been placed before me, including material that may not necessarily be admissible in a trial, in order to perform this exercise.

20.Having considered all the relevant materials, including the terms of bail conditions offered, I am not satisfied that sufficient grounds existed for believing that the Applicant will not continue to commit acts endangering national security if granted bail.  

21.So his bail application was refused.

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

Mr David Ma and Ms Jenny Lok, instructed by Bond Ng Solicitors, for the Applicant