HKSAR v. Lai Chee Ying
Read the full judgment text of HCCC 51/2022 on BabelCite. This High Court CFI judgment was delivered on 29 May 2023.
1. This is D1’s application for a permanent stay of proceedings on the basis that allowing the prosecution to continue would constitute an abuse of process. The application is not supported by the other defendants [1] in this trial.
Cited by 1 case · Cites 32 cases
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HCCC 51/2022 [2023] HKCFI 1440 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 51 OF 2022 ____________________
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____________ R U L I N G ____________ The Court: Introduction 1.This is D1’s application for a permanent stay of proceedings on the basis that allowing the prosecution to continue would constitute an abuse of process. The application is not supported by the other defendants[1]in this trial. 2.Briefly stated, on 17 May 2022 D1 was committed for trial on a total of 4 counts:
3.For the purpose of the present application, it would not be necessary to look at the particulars of the above charges. It suffices to say that the allegations against D1 are, as his counsel puts it, “of the utmost seriousness”, in that he is alleged to have conspired with others to use a widely circulated newspaper under his control to publish various seditious materials and committed acts which posed a threat to the security of the Hong Kong Special Administrative Region as well as the People’s Republic of China. The prosecution evidence against D1, as we understand from the written opening filed by the prosecution, will consist mainly of the testimony of a number of named co-conspirators who have already pleaded guilty, together with publications from open sources and WhatsApp messages. 4.After committal and filing of the indictment, on 30 July 2022 the Secretary of Justice (“SJ”) issued a certificate pursuant to NSL 46 directing that the case shall be tried without a jury. In that document, the SJ said that he had taken into account the following:
As a result, the trial has to be dealt with by a panel of three judges designated under NSL 44. 5.Although the parties had already attended two case management hearings before us on 22 August 2022 and 30 September 2022 and had been informed of the trial dates for almost 3 months, it was only at the Pre-Trial Review on 14 November 2022 (about two weeks before trial), that D1 first intimated his intention to make the present application. The grounds of the application given in the Notice[6] are as follows:
(collectively “Ground 1”) 6.By way of a Re-amended Notice[7], D1 adds the following ground in support of his stay application (with original footnotes):
(collectively “Ground 2”) D1’s submission Ground 1 7.It is submitted that whilst measures might have been taken (legislatively or administratively) to ensure that the process of executive designation of Judges mandated by NSL 44 was/is compatible with the requirements of a fair trial before an independent and impartial tribunal, the confluence of all the factors listed below operating together means that in the circumstances of the present case, the prosecution of D1 is an abuse of process as per the following “Strands”. Strand 1 8.Leading counsel for D1 emphasises that decisions as to the designation of judges, pursuant to NSL 44, appear to be taken by the Chief Executive (“CE”) personally. This is to contrast with ratification of the recommendations made by some independent body. While the CE may consult the Chief Justice (“CJ”) of the Court of Final Appeal (“CFA”) prior to making a designation, that process of consultation is discretionary. Strand 2 9.It is complained that the designation of judges is done without any published criteria for their selection, as required by ICCPR 14(1) and ECHR 6(1). This leaves the CE with a near unfettered discretion to appoint, re-appoint or remove designated judges, save for the expansive proviso that prospective or current judges must not make “any statement or [behave] in any manner endangering national security”. Strand 3 10.It is submitted that the CE is given free reign as regards the number of designated judges he appoints. On that basis, it is submitted that whilst the allocation of judicial resources by the judiciary is in general terms a factor supporting independence, that factor is significantly undermined where the CE can rule individual judges “in” or “out” of the pool from which such appointments can be made. Reference is made to Beijing Statement of Principles on the Independence of the Judiciary in the Lawasia Region[13]; Gudmundur Andri Astradsson v Iceland[14]; R (Brooke & Anor) v Parole Board & Anor[15]; and Starrs v Ruxton[16]. Strand 4 11.It is submitted that there is no public accountability regarding the designation process under NSL 44. Strand 5 12.It is submitted that designated judges lack security of tenure in two key respects: (i) they are appointed for a one-year term, renewable at the behest of the CE and (ii) their designation may be terminated if the CE considers they have made statements or behaved in a manner likely to endanger national security during their tenure. Strand 6 13.It is submitted that the institutional position of designated judges is heightened by the further extent of executive intrusion into judicial decision making in NSL cases. This is because a designated judge presiding over a case concerning a national security offence is likely to be required to have recourse to NSL 47, which compels judges to seek and accept a determination by the CE as to whether an act involves national security or evidence involves state secrets, if such an issue arises in the course of adjudication. It is argued that this directly extends the reach of the CE into the adjudicative process. Strand 7 14.It is submitted that there are reasons specific to D1’s case which mean a reasonable and fair-minded observer would not consider a hearing before a bench of designated judges to be fair in his case. Reference is made to certain statements by the current CE, Mr John Lee, which are said to be trenchantly critical of D1, and which carry the obvious implication that D1 is guilty of the charges he faces and is a threat to national security. It is submitted that by reason of the system for the designation of judges by the CE, established by NSL 44, any court constituted to hear D1’s case would be deprived of the essential safeguards necessary to be perceived as institutionally independent of the executive. 15.It is submitted that, taken the aforesaid seven “strands” cumulatively, it is overwhelmingly clear that applicable fair trial standards would be breached if D1’s trial proceeds:
Ground 2 16.Leading Counsel for D1 submits that Ground 2 goes to the heart of the integrity of the criminal justice system and the rule of law itself. It concerns the very public breaking down of political neutrality in the prosecution of D1 and the collapse of the constitutionally protected “separation of functions”: Chu Kong v Sun Min[17]; and Lau Cheong v HKSAR[18]. It is complained that the executive authorities have time and again circumvented rule of law protections in their single-minded pursuit of a prosecution against D1 in which the rules have been bent against him. 17.It is contended that there is no rule, nor law, nor judicial reference, nor political direction, which required the CE to seek an Interpretation of the NSL on the very day that leave to appeal Mr Owen’s admission was refused by the Appeal Committee. Moreover, the latest decision by the Committee for Safeguarding National Security of the HKSAR (“NSC”) to refuse a visa to Mr Owen, even before he has applied, directly contradicts the judicial gatekeeping protective mechanism mandated by the Interpretation on whether a certificate should be obtained. It is submitted that the trial of D1 without the public interest of Mr Owen’s involvement directly undermines the ruling of the courts concerned exercising superior jurisdiction. 18.Furthermore, it is submitted that the events over the last few months (which we will deal with in due course) have given rise to a public perception that there is a deliberate concerted effort (on the part of CE, the SJ, other persons purporting to represent the views of the State, and the Director) to obstruct D1 from having the availability of his counsel of choice, even when it has been endorsed by the courts. 19.It is submitted in conclusion that if indeed this trial is unable to proceed with Mr Owen’s assistance, any proceeding in his absence (whenever that may be) will always be a reminder of this saga causing his absence. The actions of the executive authorities, including notably the Director, so the argument goes, have left the Court with no choice but to order a permanent stay of proceedings. 20.Upon enquiry by the Court, leading counsel confirms that Ground 2 necessarily entails an allegation of bad faith against the Executive. Principles on stay of proceedings 21.That the court has an inherent jurisdiction to prevent its own process being abused is not in doubt: HKSAR v Lee Ming Tee[19]. However, the Court of Final Appeal held in that case that the circumstances in which in the exercise of a court’s discretion, a stay of proceedings would be justified are exceptional. This is because, in general, if a prosecution was brought, it was the court’s duty to try the case. Generally speaking, a prosecutor has as much right as an accused to demand a verdict on an outstanding indictment, and where either demands a verdict, a judge has no jurisdiction to stand in the way of it. The court would grant a stay of criminal proceedings in either of the two following circumstances:
22.In Warren v Attorney General for Jersey[20], the Privy Council explained the difference between the two aforesaid categories as follows. In the first category, no question of balancing interests arose, whereas in the second category fairness to the accused was not the proper focus of the court’s attention; that, in determining whether to stay criminal proceedings in the second category on the ground of executive misconduct, the court would take into account the particular circumstances of the individual case and, exercising a broad discretion, would strike a balance between the public interest in ensuring that those accused of serious crimes were prosecuted and the competing public interest in ensuring that the misconduct did not undermine public confidence in the criminal justice system and bring it into disrepute. That said, in Hamilton & Ors v Post Office Limited[21], it was held that depending on the nature and degree of the abusive conduct, the same acts and/or omissions may both render a fair trial impossible (thus, category 1) and make it an affront to the conscience of the court to prosecute at all (and thus category 2). 23.As regards cases which fall in category 1, in the recent case of HKSAR v Milne John [22], the Court of Final Appeal reiterated the highly exceptional nature of a permanent stay of criminal proceedings, saying that “it is only in very unusual circumstances that a court will conclude that a fair trial is impossible and thus, as a last resort, abort the trial.” 24.As regards category 2, in HKSAR v Ng Chun To Raymond[23], Stock VP (as he then was) giving the judgment of the Court of Appeal, stressed that those cases would be rare since the public interest lay in the guilt or innocence of the accused being fairly and openly determined at trial. For this to be displaced, powerful reason must exist for concluding that such a trial, although fair, would nonetheless constitute an intolerable abuse of the court’s process. The instances where such an argument had any prospect of success must necessarily be very rare. Citing R v Horseferry Road Magistrates Court, ex p Bennett[24] , his lordship emphasized that the test for the “affront” limb does not hinge on the perception of the public[25]:
25.As aforesaid, the Court in determining a stay application of a case said to fall within category (2) is required to conduct a balancing exercise: see also R v Latif [26]. In Warren v A-G for Jersey, the Privy Council summarized some of the factors that are frequently taken into account by the courts as follows:
Thus, the motive or intent of the authorities concerned must be a relevant and important consideration for the court: HKSAR v Ko Kit & Anor[27]. In HKSAR v Lee Ming Tee and Securities and Futures Commission (Third Party)[28], Sir Anthony Mason NPJ had the following to add:
See also Secretary of State for the Home Department v CC [29]. 26.Turning to the burden of proof, it is well-established that it is for the accused to establish the facts which provide the basis for ordering a stay of proceedings: Tan Soon-gin v Judge Cameron & Anor[30]. The standard of proof is on the balance of probabilities: R v Derby Crown Court, ex parte Brooks[31]. However, the nature and quality of evidence which would satisfy a court may depend in part on the facts that are alleged in the support of the application and that when assessing the probabilities the court will have in mind as a factor, to whatever extent is appropriate in the particular case, that the more serious the allegation the less likely it is that the event occurred and, hence, the stronger should be the evidence before the court concludes that the allegation is established on a balance of probabilities: Re H (Minors) (Sexual Abuse: Standard of Proof)[32], applied in HKSAR v Lee Ming-tee & Securities and Futures Commission (Third Party),ante; see also Criminal Procedure – Trial on Indictment by Bruce, at VI [753]. Judicial independence and Right to a fair trial 27.Judicial independence in Hong Kong is constitutionally guaranteed by the Basic Law (“BL”). BL 2[33], 19[34] and 85[35] specifically provide that the judicial power, including that of final adjudication, enjoyed by the Hong Kong Special Administrative Region under the BL is exercised by the Judiciary independently, free from any interference. 28.The guarantee of the right to fairness is to be found in Article 10 of the Hong Kong Bill of Rights[36] (BOR 10), the whole of which is entrenched by BL 39[37]: Swire Properties Ltd & Others v Secretary for Justice[38]. In the determination of any criminal charge against a person, or his rights and obligations in a suit of law, everyone shall be entitled to a fair and public hearing by a “competent”, “independent” and “impartial” tribunal established by law. These are qualities which the process of courts and tribunals must have in order for justice to be done. It is in the very nature of justice as administered in courts and tribunals that justice must be not only existent but also, as far as circumstances permit, visible to reasonable and informed observers. Otherwise the administration of justice would not enjoy the public confidence that it needs in order to be fully effective: Medical Council of Hong Kong v Helen Chan[39]. 29.“Competence” of the courts lies essentially in the tribunal’s own qualities. A competent tribunal lies essentially in the tribunal’s own qualities: Medical Council of Hong Kong v Helen Chan, ante[40]. 30.“Independence” refers to independence of the courts from the parties to the proceedings, the executive and legislative branches: Piersack v Belgium[41]. In this respect, it is often instructive to consider whether the tribunal concerned has security of tenure, financial security and institutional independence: Valente v R[42]; Langborger v Sweden[43]; and Bryan v United Kingdom[44]. 31.“Impartiality” denotes a court that is free from bias, which may be “actual” or “apparent”. Whereas actual bias requires direct evidence, apparent bias is based on the existence of a reasonable apprehension that the court or tribunal was biased. The court must first ascertain all the circumstances which have a bearing on the suggestion that the judge was biased. It must then ask whether those circumstances would lead a fair-minded and informed observer to conclude that there was a real possibility, or a real danger, the two being the same, that the court was biased: Deacons v White Case Limited Liability Partnership & Others[45], quoting Locabail (UK) Ltd v Bayfield Properties Ltd[46]. Relevant articles in NSL 32.Before dealing with D1’s submissions, it would be convenient to set out the relevant articles in the NSL:
Interpretation of NSL 33.The approach of the courts in Hong Kong to the interpretation of the NSL has been authoritatively laid down in HKSAR v Lai Chee Ying[54]. In that seminal judgment, the Court of Final Appeal begins by a comprehensive review of the legislative history of the NSL. It is noted first that since the PRC’s resumption of the exercise of sovereignty over Hong Kong on 1 July 1997, the HKSAR has been constitutionally obliged to enact a National Security Law. Article 23 of the Basic Law (“BL 23”) provides:
34.It is then observed that it was the failure of the HKSAR to enact BL 23 legislation that gave rise to the proposal that steps be taken at the national level to “establish and improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security, and to change its long-term ‘defenceless’ condition in the field of national security”. Five basic principles underlying the proposals can be summarized as follows:
35.The aforesaid five basic principles were reiterated in the Draft NSL and an Explanation of that Draft which was presented to the NPCSC on 18 June 2020. Certain “working principles” adopted in the Draft were identified. These focused on improving the HKSAR’s system, addressing institutional deficiencies and “shortcomings”, assigning responsibilities and coordinating institutional arrangements in relation to safeguarding national security. Notably, the fifth working principle was stated to be:
As will be seen shortly, the Court of Final Appeal considered that the words underlined above as the key to the interpretation of the NSL. 36.On 30 June 2020, the NPCSC duly decided to add the NSL to the list of laws in Annex III of the Basic Law to be applied locally by way of promulgation by the HKSAR pursuant to Article 18 of the Basic Law (“BL 18”). It was accordingly promulgated by the Chief Executive of the HKSAR who gave notice that the NSL as scheduled to the Promulgation applies as from 11 p.m. on 30 June 2020[55]. We pause here to note that the fact that the NSL is applied locally by way of promulgation means that its articles cannot be altered by local legislation. 37.Returning to the judgement of the Court of Final Appeal, it is noted that:
38.Poon CJHC, giving the judgment of the Court of Appeal in Lai Chee-ying v Commissioner of Police[56], succinctly summarized the approach to the interpretation of NSL as propounded by the Court of Final Appeal as follows:
39.In considering the interpretation and application of the NSL, we bear in mind what has been highlighted by the Court of Appeal in Tong Ying Kit v Secretary for Justice[57] that the articles contained in the NSL have to be read as a coherent whole, taking into account the constitutional basis upon which it was applied to Hong Kong, its special constitutional status focusing on safeguarding national security and preventing and suppressing acts endangering national security, and the matrix in which NSL 44 existed, including the human rights and rule of law principles referred to in NSL 4[58], which mandates respect for and protection of the rights and freedoms enjoyed by residents, and NSL 5[59], which requires adherence to rule of law principles in achieving the primary purpose of the NSL. 40.We also bear in mind the caveat entered by Cheung CJHC (as he then was) in ZN v Secretary for Justice[60] that the jurisprudence from the European Court of Human Rights must be approached with great caution. This is because the relevant provisions in the European Convention have to be construed as a living instrument accordingly, understandably, it looks at matters from the European perspective, whereas the NSL is a national law designed to protect and safeguard the national security to be applied to the local context, in particular the “One Country, Two Systems” policy which is the very foundation of the HKSAR. Whilst European jurisprudence would be of assistance, there would be areas (of which national security would be an obvious example) where the Strasbourg Court may not sufficiently appreciate or accommodate particular aspects of our domestic constitutional position. In the same vein, Poon CJHC giving the judgment of the Court of Appeal in Q v Commissioner of Registration[61]says:
Consideration Ground 1 41.In dealing with the submission of leading counsel for D1, it needs to be pointed out at the outset that he categorically disavows any reliance on “actual bias” as a ground for stay. In this regard, we note also that there has been no application for any member of the present panel to be recused. The present application, as we understand it, is an attack on the current system based on the notion of “apparent bias”. Leading counsel hastens to add that this application is not meant to be a challenge to the constitutionality of NSL 44 and that it is not the applicant’s position that NSL 44 is bound inevitably to render proceedings an abuse of process. With respect, this concession is rightly made. This is because the Court of Final Appeal had already held in HKSAR v Lai Chee-ying[62] that:
42.However, in our judgment, contrary to the stated position of leading counsel, apart from “Strand 7” (open statements by the CE about the applicant), the present application is but a systemic attack to trials by designated judges under NSL 44 through the “backdoor”. This is evident by the fact that any of “Strand 1” to “Strand 6”, if correct, could apply to each and every case under the NSL so that no person charged with an offence endangering national security could be tried or if tried whose appeal could be heard in Hong Kong pursuant to NSL 44 (3) and 45. 43.Putting aside that surprising result for the moment, we are also not convinced that any of the “Strands” put forward by D1 has any merit. Our reasons are as follows. As regards “Strand 1” 44.Leading counsel accepts, in our view realistically, that appointment of judges by the executive does not per se compromise the independence of those judges: Kearney v HM Advocate[63]. In fact, all judicial officers in Hong Kong, whether designated under NSL 44 or not, are appointed by the CE: BL 88. However, leading counsel underscores the fact that the CE is not obliged to make public the fact or consequence of any consultation which he may have conducted with the CJ before any designation, leaving him free to depart from the CJ’s recommendation absent any public scrutiny. Leading counsel submits that whilst this factor is not of itself decisive, it plainly heightens the concerns regarding the independence of designated judges and provides the basis for the need for stringent safeguards, in order properly to give effect to the right of a criminal defendant to be tried by an independent and impartial tribunal. 45.As regards the above submission, we accept that the CE is given a wide discretion under NSL 44 as to designation of judges. However, we do not agree that the CE is given a complete free rein in the matter. We say this because before a person can be so designated, he or she has to be either a judicial officer or a deputy judge in the first place. Given that the NSL is generally intended to operate in tandem with the laws of the HKSAR, regard must be had to Section 4, Chapter IV of the BL and the relevant local legislation regarding appointment of judges. In this regard, the following articles in the BL are pertinent:
46.Consistent with the BL, judicial officers are appointed by the CE upon the recommendation of the Judicial Officers Recommendation Commission (“JORC”) established under the Judicial Officers Recommendation Commission Ordinance, Cap 92. JORC as an independent advisory body, chaired by the CJ , comprises of the SJ as an ex-officio member and seven members appointed by the CE including two judges[64], one barrister appointed after consultation with the Bar Council, one solicitor appointed after consultation with the Council of the Law Society, three persons who are not connected in any way with the practice of law. Viewed in that light, it can be said that before anyone can be appointed to a judicial office, the candidate has to have the general support of the judiciary, the legal profession and reputable members of society alike. Appointment of judges, whether local or from overseas, must be based on and only on judicial and professional qualities, as stipulated under BL 92. If a candidate is considered to possess the right qualifications and qualities to be entrusted with a judicial office, then it is difficult to see how the position would change just because of a designation under NSL 44. As the CJ pointed out in his speech at the ceremonial opening of the Legal Year 2022[65],
47.As regards deputy judges and judicial officers at different levels of trial courts[66], they are all appointed by the CJ without any involvement of the CE. Their appointments are temporary and are usually on short-term basis. So far, we are not aware of any lawyers in private practice sitting as deputy judges who have been designated by the CE pursuant to NSL 44. 48.In our judgment, apart from the qualities and qualification of the person who is appointed to judicial office, the following additional factors are also conducive to public confidence in the independence of the judiciary:
49.As regards the case law, Brooke and Starrs, which are based on their own facts, do not in fact assist D1:
As regards “Strand 2” 50.We accept that NSL 44 only stipulates that a judge is not to be designated and, if designated, shall be removed from the list of designation, if he or she has made any statement or behaved in any manner endangering national security. That this requirement is entirely legitimate, reasonable and necessary goes without saying. As noted above, NSL being a national law applied to Hong Kong by way of promulgation, we do not think that it is viable to introduce additional requirements for designation of judges by way of local legislation as suggested by counsel. 51.Leading counsel complains that it is not known whether (and to what extent) the CE, in making the designation, had regard to: (1) the previous judicial decision-making of designated judges (and whether it is perceived to favour the Government); (2) the political or other opinions or affiliations of designated judges; or (3) the nationality of designated judges. 52.In our judgment, the aforesaid complaint is simply unfounded. It must be taken as a starting point that professional judges would take their judicial oath seriously and that they would put aside their personal inclinations and preferences and would decide the case before them solely on the basis of the evidence, the applicable laws and the merits. Senior Counsel suggests that the judicial oath is somehow tainted by the addition of s3AA[72] of the Interpretation and General Clauses Ordinance, Cap 1 which elaborates on the meaning of “upholding Basic Law” and “bearing allegiance to HKSAR” in the judicial oath to include, among other things:
With the greatest respect, this is a non-point which should not have been made at all. In fact, the aforesaid requirements come from the BL itself and is the very foundation of the HKSAR. In our judgment, the addition of s3AA to Cap 1 is simply to state the obvious and it introduces no change to the substance of the judicial oath. 53.Secondly, although the CE has not published any criteria for designation under the NSL, all judges, whether designated or not, are subject to the “Guide to Judicial Conduct”[73] the very guiding principles of which are “Independence”, “Impartiality” and “Integrity and Propriety”. In particular, judges are discouraged to have any political membership or affiliation:
54.Whilst NSL 44 refers to the designation of a number of judges, this is not automatically to suggest the unsuitability of the other judges in the Judiciary. As Ma CJ said in an open statement on 30 June 2020:
55.Thirdly, as Ma CJ said in the aforesaid statement, judges of foreign nationality are not excluded from designation. This is in fact shown by the composition of the present panel and the composition of other trial and appellate courts which have dealt with cases under the NSL before. As regards “Strand 3” 56.The setting up of a list of designated judges would be conducive to improving the efficiency of trials and consistency. In this regard, NSL 42(1)[74] & 58(2)[75] read together requires the fair and timely disposal of NSL cases. As such, it would fall on the CE to designate sufficient number of judges at different levels of courts so that NSL cases could be dealt with as expeditiously as fairness demands. 57.Whilst we accept that there are no publicly available figures on how many judges have, to date, been designated, one can reasonably expect that the size of that pool would depend on the number of cases to be dealt with, the numbers of judicial officers with the relevant expertise available and generally operational needs. It is now public knowledge that a sizeable number of judges at different levels have already been designated under NSL 44. Bearing in mind that there are only about a dozen criminal judges at this level of court, there are at least a sufficient number of designated judges to form two panels at the same time. The proportion of judges in the Court of Appeal and the Court of Final Appeal who have dealt with NSL cases could only be even higher. In view of the number of judges which have already been designated and given also that assignment of trial judges for any given case is a matter entirely for the relevant court leaders, it is clearly not the case, as leading counsel seems to suggests, that the CE could or would manipulate the allocation of trial judges. In a similar vein, we observe that seven judges from three levels of courts, namely the Court of First Instance, the Court of Appeal and the Appeal Committee of the Court of Final Appeal, which were involved in the matter about Mr Owen’s ad hoc admission for the present case had ruled in his favour. This, in our view, speaks loud and clear of the unquestionable judicial independence in Hong Kong. As regards “Strand 4” 58.Leading counsel submits that the present designation process is the subject of considerable secrecy and there is no public accountability of that process under NSL 44. By way of illustration, counsel underscores that there is no public information as to: (1) whether designation is made upon application by the individual judges, or on the initiative of the CE; (2) the criteria applied in designating judges; (3) whether any consultation has taken place in designation decisions (and the outcome of that consultation); (4) whether any judges have sought and/or been considered for designation, and refused; (5) the number of designated judges; (6) the identity of the designated judges; (7) the criteria applied in considering the renewal of designated judges; (8) whether any designated judges have not been renewed or have been removed from the designated list (and, if so, on what basis). 59.As to the question about the CE’s accountability to the public in relation to designation, we note that the reports of JORC to the CE are also privileged and confidential[76]. If the reports of JORC to the CE should be confidential, then we fail to see why the advice given by the CJ to the CE on designation of judges under NSL 44 should not similarly be made confidential. Although arguably a higher degree of transparency may be conducive to public confidence, NSL 44 on its face does not require the CE to disclose the information which leading counsel submits should be made public. In any event, if there were any legal duties on the CE to make the disclosure sought, they would be overridden by NSL 62. 60.If we are correct that there is in fact no legal duty for the CE to disclose the information which leading counsel submits should be made known, then just as the reports of JORC to the CE would not be made available to the defence, we are unable to see how the absence of the information sought in the public domain would render the trial unfair or apparently unfair. Firstly, as aforesaid, designations are only made from serving judicial officers who, because of their respective professional qualifications and qualities, have already been considered as fit and proper persons to perform judicial function at their respective levels. Secondly, there is and can be no challenge to the fact that the present panel is properly designated by the CE. Thirdly, leading counsel has not specified how the availability of the kind of information in the public domain would assist D1 or how the absence of the information would prejudice his defence. Fourthly, if there is any suggestion by counsel that designated judges would not be renewed or would be removed for achieving an illegitimate purpose, that is based on pure speculation. For one thing, a member of the present panel had once granted bail to D1. Even though his ruling was set aside on appeal by the Court of Final Appeal on a question of law, that did not cause his designation to be removed or prevent him from being re-designated and assigned to deal with this case and other NSL cases. As regards “Strand 5” 61.With the greatest respect, we firmly reject the submission of leading counsel that the general security of tenure as entrenched by the BL is not sufficient for the present purpose:
As regards “Strand 6” 62.We are unable to see the relevance of this contention, as the issue about NSL 47 bears no relation at all to the designation of judges for criminal cases. This is because the issue of what is “an act involving national security” or whether the relevant evidence involves “State secrets” can arise in civil as well as criminal cases and that, we think, is the reason why NSL 47 is not restricted to trials by designated judges. 63.Secondly, that the courts are bound as regards certain matters by a certificate from the executive does not mean the courts may have a bias. It simply means that the courts’ jurisdiction is restricted in relation to those matters, an example of which can be found in the BL 19 concerning “acts of state”: see Democratic Republic of the Congo v FG Hemisphere Associates LLC (No 2)[77]. 64.Thirdly, since there is (and can be) no challenge to the constitutionality of NSL 47, we are unable to see how that article can afford D1 a ground for stay or to support his contention of “apparent bias”. 65.Last but not least, in any event, as is apparent from the written opening filed by the prosecution, the present case involves no “State secrets” and the prosecution has expressed no intention of invoking NSL 47. As regards “Strand 7” 66.Leading counsel refers to a press conference held on 27 June 2021 during which the current CE, who was then the Secretary for Security, was reported to have said the following:
67.Leading counsel submits that the conduct of the CE would give rise to an obvious fear, in the mind of the fair-minded and informed observer, that designated judges may be biased – even if only subconsciously – against D1, because of the known views of the individual personally responsible for their (re)designation. 68.We accept the submission of the prosecution that the aforesaid statements attributed to the CE are only general appeals to the public not to engage in any acts endangering national security and are apparently made in response to the reporters’ enquiry about how to avoid criminal liabilities under the NSL when carrying out their journalistic work. 69.We have already given reasons as to why the general security of tenure is sufficient to protect judges, designated or not, from executive interference. If a jury can be trusted not to be affected by any newspaper reports they have read which may be prejudicial to the accused, then more can be expected of professional judges: R v Edward Christopher Harris[78]; and HKSAR v Lee Kwok Wah Francis[79]. Overall consideration on apparent bias 70.In our judgment, all the “strands” put forward on behalf of D1, whether taken individually or as a whole, is insufficient to cause a fair and informed observer, having considered the facts, to conclude that there is a real possibility that any judge designated under NSL 44 would be biased, actually or apparently, against D1. Furthermore, in all the circumstances, it would not be an affront to the court’s sense of justice to be asked to try D1, as this Court can be sure that D1 can and will receive a fair trial before a panel of designated judges. Simply put, the contention based on “bias” or “apparent bias” is not made out. 71.For the sake of argument, even assuming that we were wrong about our conclusion on “apparent bias”, this application for stay must be rejected on the basis that:
Ground 2 72.Before dealing with this ground, we note that Leading Counsel confirms that Ground 2, like Ground 1, does not seek to impugn a system designed for the protection of national security. Besides, he readily accepts that the interpretation given by the NPCSC is a measured one which makes no reference to Mr Owen, KC, D1 or the criminal trial. 73.As regards the factual background for this ground, the chronology of events is as follows:
74.Since Poon CJHC has already given judgment in favour of the SJ in HCMP 253/2023 and HCAL 566/2023 (Heard Together)[86], the present stay application must be proceeded on the basis that the judgment and the decision of NSC on 11 January 2022 was within its power and the exercise of that power is not unlawful. Furthermore, when dealing with this ground we will focus on the issue as to whether the conduct of the authorities and the people D1 complained of as regards Mr Owen’s applications for admission and for sideline employment, would be such that ‘the court’s sense of justice and propriety’ or public confidence in the proper administration of justice is or would be offended, whether or not Mr Owen would eventually be able to represent D1 in the coming trial. As pointed out by the Court of Appeal in HKSAR v Wong Hung Ki & Anor[87], this is a highly fact-sensitive question. 75.Before dealing with this ground, it has to borne firmly in mind that:
76.In dealing with Ground 2, we note firstly that in the matter of Mr Owen’s ad hoc admission in question the SJ had all along been represented by different senior counsel outside the Department of Justice and there is also nothing to show that the prosecution team had any input in this matter. There is also not a scintilla of evidence to suggest that any of those senior counsel had anything to do with the prosecution of this case. 77.Secondly, bearing in mind the above, it is perhaps unfortunate that the issues about the NSL were not raised at the first instance. Nevertheless, in our judgment, not only was there no actual conflict between the determination of the Appeal Committee and the CE’s subsequent request for an interpretation of the NSL from the NPCSC, but also that the CE was in fact duty bound to seek the interpretation. This is because:
78.Thirdly, as regards the public statements concerning this case which are attributed to people or entities perceived to represent the views of the authorities, we need to say no more than that judicial independence is guaranteed by BL 85. As professional judges, we will not be affected in any way by the public statements D1 complained about. His case is to be determined according to the applicable law and solely on the basis of the available evidence of which those public statements form no part. 79.Fourthly, given the CE’s request for interpretation and the time it would take for the interpretation, if made, to be available, the original trial dates fixed had simply become unworkable. This is supported by the fact the application for adjournment had not been met with any objection from the defence, including Leading Counsel representing D1. Furthermore, given that the trial was to be heard before 3 judges instead of a judge and a jury, taking also into account the busy diaries of the various legal representatives concerned, the parties must have realized at the time that once the trial was put off, it would take time for the trial to be heard. 80.Fifthly, it is necessary for us to point out that: (1) application for ad hoc admission; and (2) immigration control are two separate regimes involving different policies and considerations. As aforesaid, in making the decision to grant Mr Owen ad hoc admission for D1’s trial, the Court had not been informed of or taken into account any factors which might concern national security. The legality of the decision of the NSC on any future visa application of Mr Owen is the subject matter of D1’s judicial review proceedings. In this regard, Poon CJHC, after an extensive examination of the constitutional framework of the relevant articles in the BL and the NSL, says[97]:
81.We would also like to add that, in view of the then on-going litigation about the latter’s ad hoc admission, the subsequent request by the CE for interpretation of the NSL and the Director’s capacity as a member of NSC, we do not see how the Director could be criticized for taking a more cautious approach in processing Mr Owen’s application for approval to take up a sideline employment in the present case[98]. At the end of the day, since Mr Owen withdrew his application, there was no outstanding application for the Director to consider. 82.Sixthly, as regards D1’s complaint that the decision of the NSC made on 11 January 2023 circumvented the procedure of obtaining a certificate under NSL 47, we agree with the observation of Poon CJHC that paragraph 2 of the Interpretation only requires the HKSAR courts to request and obtain a certificate from the CE as to whether an act involves national security “when such a question arises in the adjudication of a case concerning an offence endangering national security”[99]. We also agree with him that[100]:
83.The prosecution submits that in the present case the decisions made by the NSC cannot constitute a ground for stay; otherwise it would amount to a “backdoor challenge” to those decisions which, by NSL 14(2), shall not be amenable to judicial review. With respect, we are unable to accept this argument. While we accept, as Poon CJHC has already held, that the decisions of NSC cannot be challenged by way of judicial review, this Court has a duty not to allow any abuse of its own procedure. In this regard, the following paragraphs of Stock VP (giving the judgment of the Court of Appeal) in HKSAR v Wong Hung Ki & Anor are pertinent[101],
84.That said, in the present case based on the evidence before us, we agree with the prosecution that by the time NSC met on 11 January 2022 no practical use could be served for the Court to obtain a certificate from the CE, as the Appeal Committee had already given its determination. Moreover, NSC has already obtained the Interpretation where it is said at paragraph 3:
Thus, we are unable to see how the NSC could be criticized for complying with the Interpretation and performing their statutory duty under the NSL. It is also pertinent to note that at the time there was no pending sideline employment application from Mr Owen whose application had already been withdrawn. Last but not least, there is no evidence that the NSC was acting in bad faith. 85.Seventhly, we are not impressed by leading counsel’s submission that the SJ should have, before D1 took out the summons in HCMP 253/2023, initiated an application to the court seeking clarification of the Interpretation to Mr Owen’s application, bearing in mind that there was no outstanding application from him for the Director to consider. For the same reason, we are also not impressed by D1’s complaint that the SJ had failed to disclose to him the NSC’s Decision until after he had filed the application for declaration, as we fail to see how it can be said that the SJ or the Director owes a duty to inform Mr Owen or D1’s solicitors of the NSC’s decision in the first place. This is especially so when one takes into account the provision of NSL 14(2) which says that information relating to the work of the NSC shall not be subject to disclosure. As regards the revelation of the NSC’s decision in the Director’s reply affirmation filed for the purpose of HCMP 253/2023, that, we are told and we have no reason to believe otherwise, was provided solely to assist the Court in dealing with D1’s application. 86.Having considered the matter in the round, we are not satisfied that a case has been made out that there has been a collapse of the principle of “separation of functions”; that the Executive has disregarded the ruling of the Court; or that there has been an attempt to erode judicial independence as alleged by D1. In short, we are not satisfied that there has been any abuse of process or affront to the Court’s sense of justice and propriety. 87.Furthermore, in performing the balancing exercise we find that the balance clearly tips in favour of a trial, taking into account:
Conclusion 88.Based on all of the above, we conclude that the grounds relied upon by D1, whether taken individually or as a whole, cannot justify a stay of proceedings. As such, the present application must be rejected.
Mr Anthony Chau, DDPP, Mr Vincent Lee, SPP, Ms Karen Ng, SPP, Ms Crystal Chan, SPP and Ms Elisa Cheng, SPP (Ag) of the Department of Justice, for the Respondent Mr Robert Pang, SC leading Mr Steven Kwan, Mr Albert N B Wong, Mr Ernie Tung, Mr Colman Li and Ms Velda Yau, instructed by Robertsons, for D1 [1] D2-D4, collectively “the Corporate Defendants”. [2] Contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap. 200. [3] Contrary to Article 29(4) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (L.N. 136 of 2020) (“NSL”) and sections 159A and 159C of the Crimes Ordinance. [4] Same as above. [5] Contrary to Article 29(4) of the NSL. [6] Dated 14.11.2022 [7] Dated 11.4.2023 [8] Chu Kong v Sun Min (2022) 25 HKCFAR 318 [2022] HKCFA 24 §20. [9] Chu Kong (supra) §42. [12] No mention of the specific provision in the NSL the meaning of which is sought to be interpreted by the Standing Committee of the National People’s Congress (“NPCSC”). [13] “16. In the absence of a Judicial Services Commission, the procedures for appointment of judges should be clearly defined and formalised and information about them should be available to the public.” [14] Application No 26374/18 (1 December 2020), at §230. [15] [2008] 1 WLR 1950, at §84. [16] 2000 JC 208 [17] (2022) 25 HKCFAR 318, at §41. [18] (2002) 5 HKCFAR 415, at §101. [19] (2001) 4 HKCFAR 133 [20] [2012] 1 AC 22 [21] [2021] EWCA Crim 577, at §127; [2021] Crim LR 684 [22] (2022) 25 HKCFAR 257 [23] [2013] 5 HKC 390 [25] Supra, at §87. [26] [1996] 1 WLR 104 [27] [2010] 6 HKC 181, at §48. [28] (2003) 6 HKCFAR 336, 395 B-C [29] [2013] 1 WLR 2171, 2200B-2201F. [30] [1992] 2 HKLR 254 (PC) [31] (1985) 80 Cr App R 164 [32] [1996] AC 563, at 586E-H. [33] BL 2 The National People’s Congress authorizes the Hong Kong Special Administrative Region to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law. [34] BL 19 The Hong Kong Special Administrative Region shall be vested with independent judicial power, including that of final adjudication. The courts of the Hong Kong Special Administrative Region shall have jurisdiction over all cases in the Region, except that the restrictions on their jurisdiction imposed by the legal system and principles previously in force in Hong Kong shall be maintained. The courts of the Hong Kong Special Administrative Region shall have no jurisdiction over acts of state such as defence and foreign affairs. The courts of the Region shall obtain a certificate from the Chief Executive on questions of fact concerning acts of state such as defence and foreign affairs whenever such questions arise in the adjudication of cases. This certificate shall be binding on the courts. Before issuing such a certificate, the Chief Executive shall obtain a certifying document from the Central People’s Government. [35] BL 85 The courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference. Members of the judiciary shall be immune from legal action in the performance of their judicial functions. [36] Article 10 Equality before courts and right to fair and public hearing
[37] BL 39 The provisions of the International Covenant on Civil and Political Rights, the International Covenant on Economic, Social and Cultural Rights, and international labour conventions as applied to Hong Kong shall remain in force and shall be implemented through the laws of the Hong Kong Special Administrative Region. The rights and freedoms enjoyed by Hong Kong residents shall not be restricted unless as prescribed by law. Such restrictions shall not contravene the provisions of the preceding paragraph of this Article. [38] (2003) 6 HKCFAR 236, 258C-259G [39] (2010) 13 HKCFAR 248, §58. [40] Ibid, §59. [41] (1983) 5 EHRR 169 [42] [1985] 2 SCR 673 [43] (1990) 12 EHRR 416 [44] (1995) 21 EHRR 342 [45] (2003) 6 HKCFAR 332 [46] [2000] QB 451, 477-478
[48] 第十四條 香港特別行政區維護國家安全委員會的職責為：
[53] 第六十二條 香港特別行政區本地法律規定與本法不一致的，適用本法規定。 [54] (2021)24 HKCFAR 33 [55] Promulgation of National Law 2020, Instrument A406. [56] CACV 356/2022 and CACV 357/2022; [2022] 5 HKLRD 205, at §13. [57] [2021] 3 HKLRD 350
[60] [2018] 3 HKLRD 778 [61] [2022] 1 HKLRD 803, at §74 [62] Supra, at §37. [63] [2005] UKPC D1 [64] Presently, they are the Chief Judge of the High Court and a Vice-President of the Court of Appeal. [65] 24 January 2022. [66] There can be no deputy judges in the Court of Appeal. [67] The Judicial Oath is in the following terms:
[68] [2020] 4 HKLRD 382. This part of the judgment is not affected by the judgment of the Court of Final Appeal HKSAR v Lai Chee Ying, ante. [69] Ante, at 1971C [70] Ibid, at 1971F [71] Ibid, at 1971G-H [72] Ord 13 of 2021, s3 [73] The updated version was published in May 2022.
[76] Sections 9 & 11, the Judicial Officers Recommendation Commission Ordinance. [77] (2011) 14 HKCFAR 395 [78] [1991] 1 HKLR 389 [79] [2013] 2 HKLRD 1009 [80] HCMP 1402/2022; [2022] HKCFI 3233. [81] Re Owen KC [2022] 5 HKLRD 726 [82] Mr Owen already has a work visa for another case in the CFI which is not related to D1’s trial and in which a different firm of instructing solicitors was involved. [83] CACV 425/2022; [2022] HKCA 1751 [84] (2022) 25 HKCFAR 288 [85] A406B in Hong Kong e-Legislation. [86] HCMP 253/2023 and HCAL 566/2023 (Heard Together), [2023] HKCFI 1382 (“CJHC’s Judgment”) [87] [2010] 4 HKC 118, [84g]. [88] [2013] 3 HKLRD 738 [89] [2021] 1 HKLRD 715 [90] (2016) 19 HKCFAR 372, at §§116-117. [91] [1916] 2 AC 77, at 107 (per Lord Parker). [92] [1985] AC 374, at 412 (per Lord Diplock). [93] [2015] AC 945, at §105 (per Baroness Hale). [94] See Flywin Co Ltd v Strong & Associates Ltd (2002) 5 HKCFAR 356. [95] Supra, at §§27-32, 34. [96] Ibid, §33. [97] CJHC’s Judgment, at §§39 & 44. [98] HCCC 51/2022 [99] Ibid, at §48(2). [100] Ibid, at §61. [101] Supra, at §84d-f. | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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