HKSAR v. Ng Man Yee Carol

HCCP 193/2021

[2022] HKCFI 1061

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 193 OF 2021

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

Date of Hearing:  20 December 2021

Date of Decision:  20 December 2021

Date of Reasons for Decision: 28 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.On 18 May 2020, the Applicant published on Stand News her article titled “制裁黑警，制裁埋黑警後路” which showed her intention to use her position in LegCo, if elected, to retaliate against the police and the LegCo officers who were maintaining order in LegCo proceedings.[6]

7.Further, on 19 June 2020, when the Applicant announced her run for the Primaries, she also posted on her personal Facebook page that there should be insurgence within LegCo as she foreshadowed dark times ahead and to resist the government.[7]  She also signed the Online Declaration[8].

8.After the promulgation of the NSL on 3 July 2020, the Applicant also posted on her Facebook page that the NSL foreshadowed an era of fear and oppression, and that the LegCo would be the battlefront.[9]

9.On 5 July 2020 in an election forum, the Applicant said, inter alia:

“其實工會運動呢唔單止本地呀，喺我哋而家發展緊呢仲誒結連到國際嘅工會運動”[10]

10.Also in her electioneering pamphlets seized from her residence and office were her adamant intention to oppose the NSL, the police and to take the fight to the international theatre.

11.The Applicant was not only active in relation to her trade union work, in the lead up to the Primaries, she also participated in the education sector gathering, on 3 January 2020, where she lobbied for resistance against the regime and the police.[11]  

12.As Mr Lo pointed out, this is not only electioneering rhetoric because even after the Applicant had lost in the Primaries, she still continued with her stance interview with the media, e.g. in her interview on 28 August 2020, she was calling for continued resistance against the authorities.[12]

13.Mr Lo submitted that the Applicant not only showed her determined and resolute stand against the authority, but also called for the fight to be taken to the international stage.  This can be seen in what the Applicant had said, both on videos and in the articles, which are so numerous that I do not need to go through each and every one of them, as they had been clearly elucidated in the Respondent’s submissions and attachments.

14.Ms Li SC’s argument that the Applicant may have seem vehement in advocating her stand prior to the election, but that was pure electioneering rhetoric.  Her main point in excoriating the police was merely to express sympathy for those who were endangered at scene when they were arrested.  The Applicant had never incited violence. 

15.At this stage of the proceedings, it is not for me to deal too specifically into what the Applicant may or may not have intended, as I have said before I do not want to taint the eventual proceeding for the Applicant.

16.All I need to say, really at this stage is that, it appears from all the documents I have read and the videos I have seen, although the Applicant did not specifically call for violence, what she said certainly could have stirred up resentment and anger against the authority.  Those assertions made by her were at times based on rumors and untruths, and not based on facts. 

17.It is also clear to me that the Applicant has an international influence as a result of her trade union work, therefore, it would be very easy for her to connect with her colleagues aboard to further the hostility against the authorities.    

18.After having read the various documents submitted by both parties and hearing the submissions of counsel, I am not persuaded that if granted bail, the Applicant will not continue to commit acts endangering national security.     

19.Therefore, I had refused the application.    

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

Ms Gladys Li SC leading Mr Benson Tsoi and Ms Yvonne Leung, instructed by Bond Ng Solicitors, for the Applicant