HKSAR v. Yung Chung Hei

HCCP 446/2021

[2021] HKCFI 2765

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 446 OF 2021

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

Date of Hearing:  27 August 2021

Date of Decision:  27 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 by the Applicant to review the decision of the Acting Chief Magistrate to admit D4, the Respondent, to bail on 19 August 2021.

2.After hearing submissions from both counsel and also reading the affirmations and written submissions, I determined that sufficient grounds exist for believing that the Respondent will not continue to commit acts endangering national security and that he will surrender to custody at the appointed time, having also taken into account, the bail terms to be imposed.  I therefore, refused the application to review and herebelow are my reasons. 

Background

3.The Respondent, together with three others (mainly D1, D2 and D3) are jointly charged with one offence of advocating terrorism (“Charge 1”) and incitement to wound with intent (“Charge 2 as an alternative to Charge 1”). 

4.There was a serious and shocking attack against a police officer on 1 July 2021 in Causeway Bay by a man named Leung Kin-fai (“LEUNG”).  On 7 July 2021, the Hong Kong University Students’ Union Council (“HKUSUC”) called a council meeting and passed a motion that the council would express “its deep sadness at the death of LEUNG, offer its sympathy and condolences to his family and friends and to appreciate his sacrifice to Hong Kong”.

5.At the material time, D1 was the chairperson of the HKUSUC and the motion was received with D2 being the proposer and D3 being the seconder of that motion.  The Respondent was the representative of the Arts Association and he supported the motion.  The motion was eventually passed as a resolution of HKUSUC.

6.The resolution was widely reported in the news between 7 and 9 July 2021.  It had also been reported in the Facebook pages of the Campus TV, HKUSU and Undergrad.

Submissions

7.Mr Chau, on behalf of the Applicant, submitted that the Respondent, when he spoke prior to and subsequent to the motion being passed, was stressing the fact that LEUNG was a hero, and that those identified as terrorists by the Communist Party, are heroes.  And that LEUNG had manifested the best of humanity for the “greater good”.  So Mr Chau submitted that the Respondent was not just someone who was simply attending the meeting and voted for the motion.

8.Mr Chau also pointed out that even as early as on 30 December 2020, during a HKUSUC meeting, the Respondent expressed his eagerness to take part in politics, and his affiliation to the localist faction, and the concept of “resistance”.  This council meeting was posted on social media.  Mr Chau also pointed out that the arrest of the four Defendants had received much publicity, and in fact also incurred external support.

9.Finally, Mr Chau submitted that even if the Respondent managed to overcome the first threshold as laid down in the case of HKSAR v Lai Chee Ying[1] in the Court of Final Appeal, he would be unable to pass the second threshold.  And that there is a high risk of absconding and failure to surrender to custody at the appointed time.  There is also a risk of reoffending.  So Mr Chau submitted that the Respondent should not be granted bail.

10.Mr Pun submitted on behalf of the Respondent, that the Respondent comes from humble family, and holds a HKSAR passport with no right of abode elsewhere.

11.The Respondent comes from a decent family of hardworking individuals, his father, a teacher for 32 years, and his mother, a social worker for 31 years.  And both his brothers are at Universities.  The Respondent is a Year 2 Bachelor of Arts student at the Hong Kong University (“HKU”), and the forthcoming academic year will be his second year.

12.Mr Pun pointed out that the Respondent was not an Executive Council member of the Hong Kong University Students’ Unions (“HKUSU”) and that after the withdrawal of the relevant resolution on 9 July 2021, the Respondent promptly tendered his resignation as the representative of the Arts Association.

13.Mr Pun pointed out that the Respondent has always had outstanding academic performance, and that if granted bail, he would be welcomed back to the University to start the new semester, as evidenced by the letter from the Dean of Student Affairs of the HKU, Professor Samson Tse.

14.So Mr Pun submitted that with the conditions imposed by the court, there is no reason to believe that the Respondent would continue to commit acts endangering national security if granted bail.

15.I have read the submissions of both counsel, the submitted documents, and also the affirmations and character references, and as was pointed out by Anthea Pang J (as she then was) in HKSAR v Lai Chee Ying[2], I have to make what is called “a predictive and evaluative exercise” on the materials before me.  And having considered everything that has been submitted before me, I consider that with the extra conditions I have imposed as conditions for bail, I believe that the Respondent will not continue to commit acts endangering national security if bail is granted.

16.Having passed the first threshold for bail[3], I consider that the risk of the Respondent re-offending or absconding in view of his background is not high and I am satisfied that the bail conditions would ensure he surrender to custody as the Court may appoint.

17.Therefore, I granted the Respondent bail.  

Mr Anthony Chau, DDPP(Ag.) of the Department of Justice, for the Applicant

Mr Hectar Pun SC leading Mr Anson Wong Yu Yat, instructed by Kenneth Lam Solicitor, for the Respondent