HKSAR v. Lam Cheuk Ting

HCCP 138/2022

[2022] HKCFI 1797

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 138 OF 2022

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

Date of Hearing: 12 May 2022

Date of Decision: 13 May 2022

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DECISION

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1.This is an application for bail arising from the conspiracy to commit subversion charge in which the applicant together with 46 other defendants, have been jointly charged under Article 22(3) of the National Security Law[1] (“NSL”) and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2.As is generally well known, the principles in relation to bail under the charges under the NSL has been enunciated by the Court of Final Appeal in the HKSAR v Lai Chee Ying[2] and the threshold is more stringent than is normal.  The Court of Final Appeal says that the court must first decide whether the court has sufficient grounds in believing that the accused will not continue to commit acts endangering national security.

3.In considering this, I have to take into consideration matters which may not be admissible at trial in order to give me hearing the bail application an overall picture and to make, as Anthea Pang J (as she then was) in HKSAR v Lai Chee Ying[3] said, “a predictive and evaluative exercise”.

4.Mr Li on behalf of the applicant, has said that the Applicant had never advocated for violence and never advocated for Hong Kong independence nor lobbied for international sanctions and that his Patreon account was just to raise funds, for example because he had resigned from LegCo, he had to have a source of living and also most particularly for his legal fees, and that Mr Li pointed out that he has in fact, prior to this application, immediately removed all the social media channels and therefore, showed his willingness to abide by the special conditions for bail.

5.Mr Lo, however, countered with the fact that the Patreon account established by the Applicant in November 2020 was to enhance foreign lobby and resistance against the authorities.  Mr Lo also pointed out that in September 2019, that the Applicant had, together with D23 and D29 in this same case, announced that they were establishing a task force to lobby for international sanctions.  It also can be seen from the Patreon account and the donations that have been made that the applicant has strong political influence, so Mr Lo submitted, therefore, that the Applicant could not overcome the first threshold.

6.The fact of the matter is that in looking at the facts presented to me, there is always argument from one side or the other.  The problem is that in making a predictive and evaluative exercise, I have to consider everything and it is without a doubt that the applicant does have strong political influence.  He has maintained his stance to lobby for international sanctions as late as in November 2020 and I am therefore not satisfied that if granted bail he will not continue to commit acts endangering national security.

7.Therefore, the application is refused.

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

Mr. Marco K W Li and Mr Peter Chiu, instructed by Ho Tse Wai & Partners, for the Applicant