HKSAR v. Wong Pak Yu

HCCP 430/2021

[2021] HKCFI 2875

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 430 OF 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]

Applicant’s submission        

6.Mr Ma submitted on behalf of the Applicant that he came from a working class family and had a very short political career.  He was a volunteer in Tin Shui Wai to help the underprivileged, and in 2014 he then joined the political party called Tin Shui Wai New Force.  He was a diligent District Councilor.  During his time as a District Councilor, he had a harmonious relationship with the government and the police. 

7.Also, Mr Ma pointed out that although the Applicant signed the Online Declaration, the original aim of the Primaries was no longer possible in view of what transpired subsequently.   There is no evidence that the Applicant had any deep-rooted political influence.

8.Mr Ma also submitted that the Applicant past comments on the NSL and the Applicant calling himself “超區坦克車” were all simply his political rhetoric. 

9.Since September 2020, there was a period of at least 6 months that the Applicant did not do any act or allege to do any act endangering national security before his remand in March 2021. 

Respondent’s submission

10.Mr Lo, on behalf of the Respondent, submitted that his objection to bail was based on three grounds: first of all, from 2014, the political influence of the Applicant had expanded and secondly, his attitude and language, politically, both before the implementation of the NSL and after the NSL, were similar.  And thirdly, on a risk assessment as to what he would do on the international front is still a matter that is of concern. 

11.To demonstrate his points, Mr Lo played to this Court videos A and B, and also video C, which were after the implementation of the NSL on 1 July 2020. Mr Lo pointed out that the Applicant was still firm in the stance he had taken prior to 1 July 2020. 

12.Mr Lo submitted that the Applicant explained what he would do on the international front and that Hong Kong was not to be a part of China.  Mr Lo pointed out that in video D which was taken on the 11 July 2020, he was still forceful in his opposition to the NSL.

13.On 14 March 2020, he had also signed the letter from Hong Kong District Councilors to the then US Secretary of State, Mr Pompeo, calling on the US to impose sanctions against the HKSAR Government officials, which the US did between August 2020 and January 2021.

14.It was pointed out by Mr Lo that, on 2 July 2020 after the promulgation of the NSL, the Applicant also signed a Joint Declaration issued by the Canada-Hong Kong Link, calling upon the international community to stand with Hong Kong, such as the imposition of sanctions, using economic and commercial treaties with China as a leverage to their misguided manifesto.

15.Videos J and K are also further evidence of the Applicant’s unfounded criticism of the governments in the PRC and the HKSAR.  And in August 2020, he together with other winners of the Primaries and the HK Employees Alliance, attended a press conference appealing to the public to boycott the “universal Covid-19 testing” launched by the HKSAR government.

16.So Mr Lo submitted that this demonstrated that the Applicant had strong political influence and he would determine and resolute, and would further commit offences against national security if bail is granted.

17.In his reply submission, Mr Ma submitted that although the Applicant labelled himself as a localist, a localist has many meanings, one of them is that he was in favour of supporting local interests which does not necessarily clash with the government. 

18.The “posters” that were found in the Applicant’s office were actually stickers, and they were found in a folder together with all sorts of campaign materials from other local politicians.  So they cannot reflect the Applicant’s own view as to his ideology.

19.Mr Ma also submitted that although the Applicant had signed some Declarations, he was not the drafter nor the convener of those Declarations.  There is no evidence that he had any direct communication or close connection with any foreign official, diplomat or media. 

20.Therefore, Mr Ma submitted that none of the matters alluded to by the Respondent’s counsel showed in any way that the Applicant will continue to commit acts endangering national security if bail is granted.

Discussion

21.As had always been stated previously, the judge on a bail application of this nature has to make a “predictive and evaluative” exercise as Anthea Pang J (as she then was) had said in HKSAR v Lai Chee Ying[6], on all the available evidence before the court.  Even matters which may turned out to be inadmissible in a trial. 

22.Of course, that will take into account the words actually used, the demeanor when it was said, the setting in which it was said, and also the various occasions when matters were said by the Applicant.  To distill it into a pot, and consider all of them, together with the submissions, and also the possible, conditions of bail, whether the Applicant will continue to commit acts endangering national security if bail is granted.

23.Having, as I said, looked at the evidence, together with all the submissions, and bail conditions offered, I am not persuaded that the Applicant will not continue to commit acts endangering national security if bail is granted.  So he fails in successfully crossing the first threshold.

24.So the Applicant’s bail was refused.

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

Mr David Ma and Mr Schweitzer Wong, instructed by Ho, Tse Wai & Partners, for the Applicant