HKSAR v. Yu Wai Ming Winnie

HCCP 348/2021

[2021] HKCFI 2562

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 348 OF 2021

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

Date of Hearing: 28 July 2021

Date of Decision: 28 July 2021

Date of Reasons for Decision: 14 September 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 of “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 Respondent submitted that even before D1, D2 and other  persons announced the Primaries on 9 June 2020, the Applicant had already published an article on the 31 March 2020 advocating her intention to carry out the objective of “mutual destruction” within the Legislative Council (“LegCo”)[6].

7.Also on the 22 April 2020, the Applicant, as chairperson of the HAEA (“Hospital Authority Employee Alliance”) had an interview with Inmediahk and further expressed, inter alia:

“... 是罷工一役令她徹底意識到，「一定要用任何方法去推翻而家呢個政權、呢個政府，先可以做到一個改變」。”

8.The Respondent also asserted that the Applicant was adamant that it is through gaining over half the seats in LegCo that by paralysing the government from within LegCo, and with citywide strike including:

“…國際線的配合… 逼使政府正面回應五大訴求，「做唔到缺一不可，一定唔收貨。」”

9.Also, as can be seen in her interview on 15 May 2020 and on 23 May 2020, she advocated in a similar vein as can be seen in Video A.  And in an article on 23 May 2020[7], she continued calling for international support by saying:

“… 有不少外國媒體甚至領事館人員對發動罷工的工會感到興趣。作為工會代表，我亦不放過任何機會向他們作出解說，道出罷工的真正原因就是香港政府的失敗與不作為，政治凌駕人命。”

10.The Respondent also submitted that the Applicant signed the Online Declaration, and also on 20 June 2020 submitted her Primaries Nomination Form.  On 7 July 2020, even after the promulgation of the NSL, the Applicant continued to lobby for the Primaries in her Facebook page.[8] Also in an interview[9], she was still lobbying for resistance of the regime.  

11.Finally, she won in the Primaries for the health services functional constituency which was held between 11 July 2020 and 12 July 2020.  After her victory, she continued to repeat her platform of resistance against the HKSAR government.       

12.On 25 July 2020, in an article, she again stated her intention to refuse to pass the budget if she was elected into LegCo.  On 27 July 2020, the Applicant submitted her LegCo nomination form.

13.In view of the above, the Respondent submitted that no sufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if bail is granted.  In support of their contention, the Respondent also referred to Video D where on 10 August 2020 in a video interview, the Applicant confirmed her determination to act against the HKSAR government even after the promulgation of the NSL and the suspension of the election. 

14.The Respondent also submitted that even if she passed the first threshold, there is a high risk of the Applicant absconding and risk of re-offending.  So the application for bail was opposed.

15.The Applicant’s counsel, Mr Li, submitted that her focus at the beginning was the fact that she considered that the HKSAR government was ignoring the advice of experts for not closing the borders because of the Covid-19 situation.  The Applicant had no political connection to any political party, she was only a union leader. 

16.There is no evidence that she ever had any international connection, and that the Court in making a risk assessment by looking into the future, doing a predictive and evaluative exercise as Anthea Pang J (as she then was) said in the case of HKSAR v Lai Chee Ying[10], should look at the background of the Applicant, together with her platform when running for the Primaries, and her ultimate objective was to enter LegCo.

17.Overall, I consider that having taken into account everything that I have seen, and also what she had said as pointed out by Mr Lo for the Respondent, I am satisfied with the conditions imposed for her bail that she will not continue to commit acts endangering national security if granted bail.  So, I consider that she has successfully overcome the first threshold.

18.In relation to the second threshold, I go back to the usual consideration for bail, which is whether she will surrender to custody at the appointed time, and I am satisfied that with the bail conditions I had imposed that she will do so. 

19.Therefore, I had considering her background, her family circumstances that she will neither be a flight risk or will re-offend if granted bail. 

20.I therefore granted her bail with the conditions which I had already set out in open Court.  

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

Mr Marco K W Li, instructed by O Tse & Co, for the Applicant