HKSAR v. Fan Kwok Wai Gary

HCCP 454/2021

[2021] HKCFI 3109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 454 OF 2021

__________________________

__________________________

____________________________

REASONS FOR DECISION

____________________________

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.The Applicant had applied for bail twice before the Chief Magistrate and had been refused bail.  He had, therefore applied to this court for bail. 

7.Mr Kwan submitted, inter alia, that the Applicant aged 54, would like bail in order to take care of his parents, as his father suffered from severe dementia and his mother who is 80 years old, is a sufferer from high blood pressure and diabetes.

8.Mr Kwan also pointed out that the elder sister of the Applicant was diagnosed with lung cancer not too long ago, and that the Applicant’s wife is pre-occupied with taking care of her own parents.  Therefore, the Applicant is keen to be granted bail in order to look after his family. 

9.Mr Kwan also submitted that the Applicant was a local politician who advocated non-violence, and he had never advocated for mutual destruction. There is no evidence to show that he had any international connection.  The stance which the prosecution ascribed to him was only election rhetoric.  Although he did say “光復香港”, he did not mean it as advocating Hong Kong independence.

10.So Mr Kwan submitted that there would be no impediment to him being able to overcome the first threshold as laid down by the CFA judgment in HKSAR v Lai Chee Ying. 

11.As for the second threshold, Mr Kwan stressed that the Applicant had a long record of service to Hong Kong, and all his connections are in Hong Kong.

Respondent’s Submission  

12.Mr Lo in his extensive submission, referred to videos leading up to the Primaries, where the Applicant was seen advocating in a determined manner, for the government to accede to the five demands.  He repeated those demands even after the Primaries.

13.Mr Lo also pointed to the Applicant’s internet “Patreon” site, where membership was paid for in U.S. dollars. Even as late as 16 October 2020, he can be seen advocating that all parties should join together and act together in opposing the government.[6] 

Conclusion

14.As Anthea Pang J (as she then was) said in HKSAR v Lai Chee Ying[7] that the court, on a bail application in NSL cases, has to do “a predictive and evaluative exercise” based on the various matters that had been brought to the count’s attention. Some of these matters may not be admissible in a court of trial, and therefore, I do not mention them here in this written ruling.  However, I have to consider them in assessing whether the Applicant will continue to commit acts endangering national security if bail is granted.   

15.As Anthea Pang J (as she then was) had also said “a determined and resolute person” may be more likely to transgress than one who is not.  Having watched the videos and listened to what the Applicant had said, I am left with the conclusion that if granted bail, the Applicant will continue to commit acts endangering national security.  So he had failed to pass the first threshold. 

16.Therefore, the application was refused. 

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

Mr Billy Kwan, instructed by Bond Ng Solicitors, for the Applicant