HKSAR v. Wong Ji Yuet

HCCP 675/2021

[2022] HKCFI 1136

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 675 OF 2021

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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 Respondent had opposed the bail application on the ground that there is no sufficient ground for believing that the Applicant will not continue to commit acts endangering national security if bail is granted. 

7.The Respondent’s position is that the Applicant had shown a determination and conviction to act in furtherance of the conspiracy on many occasions, even after the promulgation of the NSL and the suspension of the LegCo election.

8.The Respondent had pointed out that in a street rally when the Appellant announced that she would run for the Primaries on 21 June 2020, she had, inter alia, said she would fight against the Central People’s Government and strive to break Hong Kong free from the CCP.[6]   

9.In a video interview made by the Applicant on 24 June 2020, she again repeated her stance that she would use her best endeavours to resist against the regime despite the ongoing criminal proceedings against her for rioting.[7]

10.Subsequently on 3 July 2020 after the promulgation of the NSL, the Applicant in an election forum for the New Territories West constituency broadcasted on 5 July 2020, she again confirmed her unwavering resistance against the regime, and stated that she would carry the resistance to the LegCo battlefront, and she was creating unsubstantiated fear against the NSL.  She also in the course of that forum asserted that the rule of law in Hong Kong no longer existed.[8]   

11.Subsequently, the Appellant had won in the Primaries and she submitted her LegCo nomination form on 27 July 2020.  But soon after on 31 July 2020, the LegCo election was postponed. 

12.Mr Lo also submitted that even after the Primaries, on 28 July 2020, the Applicant went on to allege that the regime had been utilising “white terror” and the NSL as a means to spread fear amongst the community.  She also made false accusations that there were violent abuse of Hong Kong citizens by law enforcement agencies, and encouraged her fellow peers to voice out such that the international community would offer assistance in this regard.[9]

13.Mr Lo also asserted that the Applicant despite the LegCo election postponement, continued to sow the seeds of fear among Hong Kong citizens by comparing Hong Kong with Xinjiang, and the unfounded allegation that Hong Kong people’s freedom would be further diminished like the establishment of rehabilitation camps in Xinjiang.[10]  The Appellant also had gained some support on the international front, specifically from a person in Japan called “Uryu Hirano”.[11] 

14.Mr Lo pointed out that the Appellant’s twitter account had 32,000 followers and her telegram channel had 1,310 subscribers.  Using these social platform, she made unwarranted accusations against the law enforcement agencies in Hong Kong.  It showed that she was resolute and determined and would continue to commit acts endangering national security if bail is granted.

15.Mr Lau on behalf of the Applicant, stressed that the Applicant never called for international sanctions against the authorities nor did she ever advocated for Hong Kong independence.

16.Mr Lau also submitted that the Applicant comes from a simple family, both her parents are teachers.  She was born and raised in Hong Kong.  She did join Scholarism in 2012, however, when Scholarism disbanded in 2016, she did not follow the then leader Joshua Wong to start the new political party Demosisto.  Instead she set up a new student Group called TheEduLab, which focused mainly on the educational system.  She is now more focused on her art therapy and in becoming an art therapist. 

17.The Applicant also left TheEduLab which she founded in April 2020. She was studying Visual Studies at the Lingnan University and only had the final 12 credits to go before she could attain her degree.  She had received assistance and guidance from her teachers in the course.  Therefore, her top priority is really to complete her Bachelor’s degree. 

18.Mr Lau also invited this Court to look at the character references that had been submitted in the Applicant’s bundle of documents. Three are from the teachers in her course, expressing that the Applicant had shown great commitment and excellent performance in her course study, also one from her husband and one from her parents testifying to the Applicant’s sense of responsibility and empathy.   

19.At the end of the day, having considered all the materials that had been placed before me by both the Applicant and the Respondent, I have to, as Anthea Pang J (as she then was) in HKSAR v Lai Chee Ying[12] said, perform “a predictive and evaluative exercise” to consider if granted bail, the Applicant will continue to commit acts endangering national security.

20.I am aware of course that as it is a bail application, my reasons cannot be as expansive and specific as I would like, because I always have in mind the protection of the integrity of future proceedings. 

21.Having assessed and evaluated the materials before me, I am of the view that together with the bail conditions I had imposed, the Applicant will not continue to commit acts endangering national security if bail is granted.  Therefore, I have to consider the second threshold, that means under the Criminal Procedure Ordinance, Cap 221, applying the presumption in favour of bail. 

22.In considering the second threshold, the main criteria is that the Court has to be satisfied that the Applicant will surrender to custody at the appointed time at the Court will direct.  I am confident that with the conditions imposed that the Applicant will do so.

23.Therefore, at the end of the day I granted bail.       

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

Mr Kin Lau, instructed by H.M. Tsang & Co, for the Applicant