HKSAR v. Tam Hoi Pong

HCCP 417/2021

[2021] HKCFI 2669

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 417 OF 2021

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

Date of Hearing:  23 August 2021

Date of Decision: 23 August 2021

Date of Reasons for Decision:  20 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]

Applicant’s submission            

6.Mr Ma submitted that the Applicant had not signed the online declaration as others did, particularly the D37.  While it is true that the Applicant’s party of Neo Democrats was signatory to the declaration, he never signed in his personal capacity. 

7.Mr Ma submitted that the Applicant lost in the Primaries, so he does not have much political influence.  He has now given up politics, he is married, and would like now to focus on his family and friends rather than politics.  Furthermore, the Applicant also has to look after his health condition as there is a lump under his tongue which he has submitted to medical attention for. 

8.The Applicant would like to focus more on environmental issue and in fact, he has been cooperating with various government departments for years over the environment.  He was elected as a District Councilor for Ma Wan in 2016 and worked hard for the residents of Ma Wan, while also promoting environmental issues. 

9.After his initial arrest, he has observed all police bail conditions and surrendered to custody at the appointed time.  So Mr Ma submitted that the Applicant not only pass the first threshold, but also the threshold under the Criminal Procedure Ordinance, Cap 221, as there is no risk of him reoffending or fail to surrender to custody at the appointed time.

10.In support, Mr Ma also submitted many letters from friends in relation to the Applicant’s support of environmental issues, and love from his family. 

Respondent’s submission 

11.Mr Lo submitted that in the Applicant’s campaign speech on 19 June 2020, he not only emphasized his support for the Scheme, by agreeing to veto the budget twice and that he would also:

“…亦都係可以清算返所有前黑警嘅立法會保安…”
      

Mr Lo translated 清算as “purging or retaliating”, Mr Ma translated it as “making people accountable”.    

12.However, I note that what the Applicant said in his speech on 19 June 2020 was that he would seek out all the former “黑警嘅立法會保安”.  So it was not as Mr Ma submitted as a simple accounting of the security guards.  It can also be seen in clear term in the Facebook page published on the Applicant’s own Facebook[6] where he said:

“若能成為立法會議員，我會用盡一切方法抗爭，包括否決一切政府議案、預算案，亦會以最快速度清算以立法會保安之名與香港人對抗的前警員。”

13.He also emphasized his resistance to the NSL and he also displayed a resolute and determined stance, in enclosure 11 of the Respondent’s submission which is another Facebook page on 20 June 2020.      

14.Mr Lo further submitted that on 25 June 2020 in an election campaign speech, the Applicant again reiterated his stance against the NSL and his hostility against the police.[7]  He said, inter alia:

“…一定會反對《國安法》。因為呢條惡法係赤化香港，將香港嘅法治取消，蕩然無存。我哋唔要將啲案件拎上大陸審，因為呢個《國安法》根本就係加強版嘅送中條例，我哋係不能夠接受。”

15.Then on 5 July 2020, the Applicant attended another election forum for the New Territories West constituency which can be seen in Video C.  And again unwaveringly reiterated his stance.  Between 11 July 2020 and 12 July 2020, the Applicant lost in the Primaries, and therefore he did not participate in the 2020 Legislative Council General Election.

16.Mr Lo also referred to Video D which was a public assembly on 19 January 2020, where the Applicant called for international sanction against Hong Kong officials and senior police officers.  And his stance never waivered even after the promulgation of the NSL as can be seen in Video F on 13 August 2020.

17.So Mr Lo submitted that the Applicant had persistently reiterated his stance against the Hong Kong government, the police and the NSL.  So if he granted bail could very easily use the multiple platforms available to him to continue to offend against the NSL. 

18.Mr Ma in reply said that the Applicant had already deactivated his Facebook account, and that when he called for sanction against the government, it was prior to the promulgation of the NSL. Therefore, the Applicant’s promise to quit politics would ensure that he no longer would continue to offend against the NSL while on bail.       

Discussion

19.In determining whether the Applicant had passed the first threshold as laid down by the CFA in HKSAR v Lai Chee Ying, as Anthea Pang J (as she then was) said in HKSAR v Lai Chee Ying[8] that the court has to make “a predictive and evaluative exercise”. 

20.Having heard and seen the documents and videos, and also read and heard the submissions of both counsel,  I am not satisfied that the Applicant will not continue to commit acts endangering NSL if granted bail.

21.Therefore, the application was refused as the Applicant has failed to pass the first threshold. 

Mr Andy Lo, SPP, Ms Karen Ng, SPP(Ag.) and Ms Cherry Chong, SPP(Ag.)  of the Department of Justice, for the Respondent

Mr David Ma and Ms Winnie Li, instructed by Bond Ng Solicitors, for the Applicant