HKSAR v. Leung Kam Wai and Another

HCCP 509/2021

[2021] HKCFI 3214

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 509 OF 2021

__________________________

__________________________

____________________________

REASONS FOR DECISION

____________________________

1.The 1^st Applicant (D3) and the 2^nd Applicant (D4), together with three others, are jointly charged with an offence of “Failing to comply with notice to provide information”, contrary to section 3(3)(b) of Schedule 5 to the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (Instrument A406A). (“the Implementation Rules”)

2.The 1^st Applicant, Mr Leung Kam Wai, is D3 and the 2^nd Applicant, Mr Chan To Wai, is D4. 

3.It is alleged that the five Defendants, being office bearers of the “Hong Kong Alliance in Support of Patriotic Democratic Movements of China” (“the Alliance”), or a person managing or assisting in the management of the said organisation in Hong Kong, who has been served with a notice under the Implementation Rules, failed to comply with the notice.  All five Defendants pleaded not guilty and the defence stated that the issue in the case would be whether the Alliance are “foreign agents/foreign political organization” or not.

4.Section 3 of Schedule 5 empowers the Commissioner of Police to issue the notice provides as follows:

“(1) If the Commissioner of Police reasonably believes that it is necessary to issue the requirement for the prevention and investigation of an offence endangering national security, the Commissioner may from time to time, with the approval of the Secretary for Security, by written notice served on a foreign agent or Taiwan agent, require the agent to provide the Commissioner with the following information within the specified period in the specified way—

(a) …

(b) if the agent is an organization—

(i) the personal particulars of the staff of the organization in Hong Kong, and of the members of the organization in Hong Kong (including name, age, type and number of identification document, occupation and residential address);

(ii) the activities of the organization in Hong Kong;

(iii) the assets, income, sources of income, and expenditure of the organization in Hong Kong.”

5.“Foreign agent” is defined in section 1 of Schedule 5:

“(a) means a person who carries on activities in Hong Kong, and—

(i) is directly or indirectly directed, directly or indirectly supervised, directly or indirectly controlled, employed, subsidized or funded by a foreign government or foreign political organization, or accepts monetary or non-monetary rewards from a foreign government or foreign political organization; and

(ii) carries on all or part of the person’s activities for the benefit of a foreign government or foreign political organization; but

(b) does not include a diplomatic agent, a consular officer, or an employee of a consular post, who is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong, or any other person or body that is entitled to privileges and immunities in Hong Kong in accordance with the laws of Hong Kong;”

Applicants’ Submission

6.Mr Shek argued that this offence, being a strict liability offence, should be interpreted under either the Second Alternative or Third Alternative, as pointed out in Kulemesin v HKSAR[1], and that this offence is not a national security offence, but merely an ancillary offence.  Mr Shek relied on the case of HKSAR v Ng Po On[2]. 

Respondent’s Submission

7.Mr Cheung submitted that the Implementation Rules were an elaboration of the powers under National Security Law[3] (“NSL”) 43 itself. The National People’s Congress (“NPC”) has authorized the Chief Executive of the HKSAR to make the said rules for the purposes of NSL 43, and therefore Mr Cheung submitted that these rules are attributable to NSL 43 and the implementation of the aims and objectives of the NSL itself and could not be viewed in isolation.  Clearly, the Implementation Rules were made to safeguard national security.

8.Mr Cheung also submitted that the case of HKSAR v Ng Po On, supra, relied upon by Mr Shek, relates to the power to obtain information under the Prevention of Bribery Ordinance, Cap. 201.  Although the Court stated that it was an ancillary offence, they did not say that it was unrelated or isolated from corruption offences per se.    

Discussion

9.In my view, although Mr Shek tried his valiant best to segregate the Implementation Rules from the NSL.  I am of the view that the Implementation Rules are a necessary part of the NSL and its implementation.  Therefore, for the purposes of bail, the thresholds laid down in HKSAR v Lai Chee Ying[4] by the Court of Final Appeal applies in this case.

10.As noted by Mr Cheung, the acting Chief Magistrate in refusing bail had considered that this was a continuing offence and that the Applicants’ outright refusal to provide information would hinder the investigation of offences endangering national security, and may result in the potential loss of evidence and escape of offenders. 

11.It was pointed out by Mr Shek that as the maximum sentence is 6 months’ imprisonment upon conviction and the Applicants been in custody for 1.5 months already, it is likely that they may have served a large part of sentence by the time they are tried.  I have considered this argument but I am sure when the case is set down the Court will note the Applicants are in custody and thus give an urgent date for trial.

12.I consider that taking into account the arguments before me, I believe that if granted bail, the Applicants will continue to commit acts endangering national security.   So the Applicants’ bails were refused.       

Mr Ivan Cheung, SPP and Ms Karen Ng, PP, of the Department of Justice, for the Respondent

Mr Randy Shek, instructed by Ho Tse Wai & Partners, for the 1^st and 2^nd Applicants