HKSAR v. Fung Tat Chun Frankie

HCCP 584/2021

[2022] HKCFI 744

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 584 OF 2021

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

Date of Hearing: 4 November 2021

Date of Decision: 4 November 2021

Date of Reasons for Decision: 6 April 2022

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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]

DISCUSSION

6.The Applicant who is D15 in the case, is charged together with 46 other defendants with one count of “Conspiracy to commit subversion”, contrary to Article 22(3) of the NSL, and sections 159A and 159C of the Crimes Ordinance, Cap 200.

7.His application for bail was refused by the learned Chief Magistrate in March 2021.  At the time of the hearing of this bail application, the Applicant in the case have already been served with the Committal Bundle and a Return Day was set down for 29 November 2021 pending certification of translation of the documents. 

8.This case is part of a series of bail applications that had come before this Court, and the principle in considering bail is derived from the Court of Final Appeal’s judgment in HKSAR v Lai Chee Ying that stated that bail consideration under the NSL are considerably more stringent.  The Court of Final Appeal said that the Court must first decide whether there were sufficient grounds “for believing that the accused will not continue to commit acts endangering national security”, which is the first threshold, and it is only if the Court concludes there were sufficient grounds then the Court would then proceed to consider the application applying the second threshold, which is under the Criminal Procedure Ordinance, Cap 221, section 9N.

9.The Applicant’s role in the scheme was to participate in the “Primaries” in order to secure over 35 seats to attain a controlling majority in the LegCo election and to ultimately achieve the goal of compelling the Chief Executive to resign. Despite the government issuing a public statement in July 2020 that the holding of the Primaries might have fallen foul of Articles 20, 22 and 29 of the NSL, and the Liaison Office of the Central People’s Government in the HKSAR publicly pointing out that the Primaries was illegal and have fallen foul of the NSL, the Applicant participated in the Primaries by submitting his Primaries nomination form and also signed the Online Declaration[6].      

10.On 25 June 2020 in an election forum, broadcasted on 27 June 2020[7], the Applicant made clear his intention by saying, inter alia :

“今日我哋參與呢一個初選論壇，係因為我哋明白，有一個共同嘅敵人就係共產黨政權…”[8]

11.And later on in the same forum[9], the Applicant reiterated:

“因為我會堅持喺議會抗--議會入面進行呢個肢體衝突，甚至乎係會用盡一切，拉倒惡法，包括肢體嘅衝突，我亦都已經有呢個被捕，甚至乎被控告嘅準備。”

12.Despite the Applicant having participated in many open forums and interviews about his candidature, he lost in the Primaries. But despite his loss, he still participated in and supported the winners in the Primaries, as can be seen, for example, in Video E.  And in his Facebook page[10], the Applicant stated that should he lose in the Primaries, he would not participate in the election which was pursuant to the consensus under the Scheme[11]. 

13.However, on 31 July 2020, he filed the LegCo nomination form[12]with a view to participate in the election of the New Territories East constituency because of the disqualification of 3 candidates in that constituency.  The Election, however, was postponed for a year due to public health consideration.    

14.The Respondent submitted that the Applicant has shown himself to be persistent in promoting and spreading subversive ideologies, and that he co-founded a media platform “DB channel” which over time had served as a platform calling for sanctions, promoting seditious ideologies and gathering support on the international front. 

15.In fact, on 2 September 2020 in an interview which was broadcasted on YouTube[13], the Applicant reiterated his position that he would continue his resistance.  And further along in that interview, he said:

“而家，我哋我諗我哋尋求呢個國際嘅制裁啦，等待呢個奧援啊，國際嘅奧援嘅時候，我哋香港人都要自強啦…”[14]

16.In fact, shortly before the Applicant was brought to Court on 1 March 2021, in an interview published by InMediahk, the Applicant revealed he had intended to leave Hong Kong but was arrested before he could do so. Therefore, it was submitted by the Respondent that the Applicant was still determined to promote his agenda. 

17.Also, as can be seen from the Online media called DB channel which he co-founded, the platform consistently was disseminating via reporting, calling for international sanctions against Hong Kong and Chinese officials, etc.  These publications calling for sanctions on the international front and advocating Hong Kong nationalism were published as late as February 2021[15].

18.So, it was submitted by Mr Lo that the Applicant would continue to commit acts endangering national security if bail was granted.

19.Mr Kin Lau, appearing on behalf of the Applicant, submitted that the Applicant’s involvement in the political arena was brief, and was mainly triggered by social events in the past few years.

20.Mr Lau pointed out that the Applicant’s defeats in both 2019 District Council election and the 2020 Primaries showed that he did not have political influence or reach as painted by the Respondent. Since he had already been in custody for 8 months, any influence he may have had, would have disappeared.   He was a man dedicated to the welfare of the Lung Shing District in Kowloon City, as evidenced by the character references submitted in this application.  The Applicant’s risk of absconding is low as he is Hong Kong born and his roots are in the community.       

21.Mr Lau submitted that the initial political participation of the Applicant was due to his concern for the Kowloon City community.  The original intention of setting up the media platform was in order to cover news of the social movement and subsequent court cases in 2019. However, he parted company with the other founders due to ideological differences.

22.Mr Lau also submitted that the speeches and words used by the Applicant were merely political rhetoric used during the campaign.  This is due to his inexperience in the political field. 

23.Subsequent to his arrest, he had caused his Facebook page to be shut down, and that with the bail conditions imposed, it would ensure that the Applicant would not commit any act endangering national security if bail is granted.        

24.In relation to the second threshold, Mr Lau submitted that the Applicant would like bail in order to take care of his mother who is not well, and he lives at home with his mother and his elder brother.  In fact, the Applicant has always been in service to the community and had participated in the National Day Celebration in 2012 as part of the choir which performed the National Anthem.

25.As evidenced by the many reference letters that had been submitted, the Applicant had been an active and well-liked person in both school and university.  Given his clear criminal record, it is submitted that there would be no danger at all if the Applicant is granted bail, and that he will appear in Court at the appointed time.      

26.Having read the many documentary exhibits referred to by Mr Lo, and also seen the videos submitted by the Respondent, there is no doubt that the Applicant was determined and resolute in his belief and that if bail is granted, there is also no doubt that he would continue to commit acts endangering national security. 

27.Mr Lau has submitted that what the Applicant had said over the course of the interviews submitted were pure election rhetoric.  However, it went beyond rhetoric and clearly showed his determination to disseminate his political agenda. 

28.As I said previously, I will only give very simple reasons to preserve the interests of the Applicant.  I must stress that in coming to my conclusion, I also took into account what was said by Anthea Pang J (as she then was) in HKSAR v Lai Chee Ying[16], where she said at paragraph 21:

“21. …one who is determined and resolute may be more readily disposed to committing the prohibited acts than one who is merely drifting along and lacks such enthusiasm. …”

29.At the end of the day, I am not satisfied that the Applicant had overcome the first threshold.  So, the application was refused.

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

Mr Kin Lau, instructed by Ho Tse Wai & Partners, for the Applicant