HKSAR v. Chow Hang Tung and Others

WKCC 3633/2021

[2023] HKMagC 4

IN THE WEST KOWLOON MAGISTRATES’ COURTS OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 3633 OF 2021

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R E A S O N S    F O R    S E N T E N C E

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Introduction

1.D1, D2 and D5 were convicted after trial of failure to comply with notice to provide information[1]. The maximum penalty is imprisonment for 6 months and a fine of $100,000.

The Facts

2.The Hong Kong Alliance in Support of Patriotic Democratic Movements of China (HKA) was incorporated in 1989 as a company under the Companies Ordinance until the recent winding up. At all material time, D1 was the vice-chairperson while D2 and D5 were committee members.

3.On 25 August 2021, the Commissioner of Police in pursuance NSL 43 and Schedule 5 of the Implementation Rules issued and served Notice on D1, D2, D5 and others, requiring for some specified information in writing with supporting documents within 14 days.

4.Before the expiration of the prescribed period, HKA held a press conference announcing their non-compliance and subsequently presented an open letter to the Commissioner on the last day of the period to show their dogged determination of non-compliance.

5.All Defendants had no criminal record at the time of the offence.

Mitigation

6.In D1’s verbal and written submission, she presents her political rationale, making criticism of the law and the case. Those are irrelevant to mitigation.

7.D2 and D5 are retired, aged 55 and 74 respectively. They had served on the committee for a long time. D5 has the usual health concern, like most senior citizens.

Sentence

8.This case is the first under the new law, there is no legal precedent on sentencing.

9.Being a foreign agent is not a criminal offence. In this case, the offence is failure to comply with the Notice, thus sentence is working on this basis.

10.National security is cardinal importance to public interest and the whole nation. The law must ensure safeguarding national security is preserved. Sentencing for offence relating to national security must reflect the law’s determination to maintain national security and send a clear message to the society that the law does not condone any violation. There is a need to impose a sentence that is punitive and sufficiently deterrent. In general, an immediate custodial sentence is inevitable.

11.The measure under Schedule 5 is intended for prevention and investigation of an offence endangering national security. The information required including information of a wide range of nexus of interactions and monetary flows. Information is the core of the measure, any obstruction would defeat the whole purpose.

12.There was premeditation to show their dogged determination of non-compliance. D1, D2, D5 and others were acting in concert, they had discussions, held a high-profile press conference and presented the open letter to the Commissioner.

13.The significance of the case is the legal arguments on a variety of subjects. D2 and D5 did not give evidence nor did they call witnesses that could only make little contribution to the improvement of the case, hence that is not a significant mitigating factor.

14.Having considered the whole matter and each defendant’s case separately, I adopt the same starting point at four and a half months.

15.I do not see there is justification for any reduction.

16.I sentence each Defendant to four and a half months’ imprisonment.

Mr Ivan Cheung, ADPP (Ag) of the Department of Justice, for the HKSAR

D1 appeared in person

Mr Philip Dykes SC, instructed by Messrs L & W Lawyers, for D2

Mr Philip Dykes SC leading Mr Albert Wong, instructed by Messrs Kenneth Lam, Solicitors, for D5