HKSAR v. Cheung King-sang Kinson and Others

HCCP 446/2021

[2021] HKCFI 3584

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:  24 September 2021

Date of Decision: 24 September 2021

Date of Reasons for Decision:  3 December 2021

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REASONS FOR DECISION

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1.The 1^st to the 3^rd Applicants (D1 to D3), are joining charged with the offence of “Advocating terrorism” (Charge 1) and “Incitement to wound with intent” (Charge 2 as alternative to Charge 1). The 4^th Defendant who was also jointly charged in this case, was granted bail by the learned acting Chief Magistrate, and the Secretary for Justice sought a review of that decision before this Court. The application for review was refused.

2.The 3 Applicants in this case (D1, D2 and D3) also apply for bail before this Court, and after the hearing of counsel’s submissions, and consideration of all matters submitted, this Court decided to grant bail to all 3 Applicants.  Here below are reasons for my doing so.

Factual Background

3.After a serious and most shocking attack on a police officer on 1 July 2021 in Causeway Bay, on 7 July 2021, the Hong Kong University Students’ Union Council (“HKUSUC”) called a council meeting and passed a motion to express its sympathy and condolences to the family and friends of the perpetrator in appreciation of “his sacrifice to Hong Kong”.   

4.At the material time, the 1^st Applicant was the chairperson of the HKUSUC, and the motion was received with the 2^nd Applicant being the proposer and the 3^rd Applicant being the seconder of that motion.  The motion was eventually passed as a resolution of HKUSUC.

5.The resolution was widely reported and at around 0100 hours on 9 July 2021 (within 30 hours of the resolution), the resolution was openly withdrawn and an apology was openly tendered.

The 1^st Applicant 

6.As Mr Pun SC correctly pointed out that the legal principles governing the grant and refusal of bail have been clearly laid down by the Court of Final Appeal in HKSAR v Lai Chee Ying[1].  There is no issue taken by either counsel of the principles, so enunciated.  

7.And as usual, it is also not disputed that the Court in assessing whether bail should be granted or not, takes a risk assessment of the future conduct of the Applicant, and as Anthea Pang J (as she then was) said in HKSAR v Lai Chee Ying[2], it is a “predictive and evaluative exercise”.

8.In relation to the 1^st Applicant, Mr Pun SC pointed out that the learned acting Chief Magistrate was not apprised of the information that he, being the chairperson of the HKUSUC, had to maintain an attitude of impartiality and in fact, therefore, he did not vote at the meeting held on 7 July 2021. 

9.Furthermore, the 1^st Applicant is 19 years old and does not hold any foreign passport or right of abode elsewhere.  He is a Hong Kong permanent resident and holds a HKSAR passport. His parents are hardworking Hong Kong permanent residents and the 1^st Applicant has a clear record.  There is also no evidence that the 1^st Applicant has any connection with any foreign country or external elements.  He is currently a year 3 Bachelor of Social Sciences (Government and Laws) and Bachelor of Laws student at HKU. 

10.Judging from the many testimonials submitted by the 1^st Applicant, he was an outstanding student from his Secondary school years up to his University years.       

11.Significantly, Mr Pun SC also submitted that the open withdrawal and apology which was tendered very shortly after the resolution was announced, shown that the likelihood of the 1^st Applicant committing similar acts in the future would be minimal, as that is clearly shown him to be neither “determined” nor “resolute”. 

12.Also, as Mr Pun SC rightly observed under Article 33(1) of the National Security Law[3] (“NSL”) provides as follows:

“A lighter penalty may be imposed, or the penalty may be reduced or, in the case of a minor offence, exempted, if an offender, criminal suspect, or defendant:

(1)   in the process of committing an offence, voluntarily discontinues the commission of the offence or voluntarily and effectively forestalls its consequences;”     

13.Therefore, Mr Pun SC argued that the open apology and withdrawal of the resolution was a voluntary discontinuation of the offence.  Mr Pun SC also submitted that being the chairperson of the HKUSUC, the 1^st Applicant has no power to disallow any motion that had been proposed. 

14.As Professor Albert H.Y. Chen said in his letter:

“…I believe that Kinson has now realised the mistake that he and his fellow students in the Students’ Union Council have made, genuinely regrets what he has done, and has sincerely apologized for his mistake.”

15.In these circumstances, I firmly believe that the 1^st Applicant would not engage in any speech or act that constitute an offence against national security if he is granted bail.

16.Mr Cheung for the Respondent, submitted that the 3 Applicants (D1 to D3) had in the past being members of the current affairs committee of the council of HKUSU, did advocate for hostility against the PRC and/or the HKSAR regime.[4]

17.Mr Cheung also submitted that as far as the 1^st Applicant was concerned, he was not passive nor impartial because at the beginning of the meeting he had led a minute of silence to commemorate the perpetrator.

18.However, this was disputed by Mr Pun SC as he said his instruction was that this was a motion proposed by some Council members and it was not suggested or proposed by him. 

19.Mr Cheung also disputed Mr Pun SC’s allegation that the 1^st Applicant was a loner because of his past conduct and involvement in the current affairs committee and his role as the chairperson of the Union Council. 

20.Having considered all the submissions of counsel, and the various materials submitted, I am of the view that with the bail conditions which I have imposed and taking into account the background of the 1^st Applicant, I am satisfied that if granted bail, he would not continue to engage in activities endangering national security.  And therefore, bail was granted.

The 2^nd and 3^rd Applicants

21.Both the 2^nd and 3^rd Applicants have similar backgrounds as that, they were both born in Hong Kong and raised here, and both are Hong Kong University students.  The 2^nd Applicant, being in his final year and the 3^rd Applicant in his 2^nd year.

22.Both Applicants have accomplished much academically and both have clear records.  Both are noted from people that know them to be conscientious, responsible and caring. I have no doubt about their backgrounds.

23.Similar to the 1^st Applicant, it is also argued on their behalf that, both Applicants no longer had any connection with the HKUSU and that they had resigned from their positions, nor have they any connections with foreign or local organizations that may have political affiliation. 

24.I am satisfied that given the bail conditions that I will impose, together with all the background information that is available to me, I am satisfied that neither the 2^nd nor the 3^rd Applicants will continue to commit acts endangering national security if granted bail.

25.Therefore, at the end of the hearing, I granted bail for all 3 Applicants. 

Mr Ivan Cheung, SPP of the Department of Justice, for the Respondent

Mr Hectar Pun SC leading Mr Anson Wong Yu Yat, instructed by Chan & Chan, for the 1^st Applicant

Mr Graham Harris SC leading Ms Yasmine Zahir, instructed by Ho Tse Wai & Partners, for the 2^nd and 3^rd Applicants