HKSAR v. Chow Hang Tung and Others

HCMA 99/2023

[2024] HKCFI 1366

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

(Appellate Jurisdiction)

MAGISTRACY APPEAL NO 99 OF 2023

(ON APPEAL FROM WKCC 3633/2021)

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J U D G M E N T

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1.On 14 March 2024, this court handed down a judgment dismissing the Applicants’ appeal against conviction and sentence. On 14 March and 25 March respectively, by notices of motion, the 1^st Applicant and the 2^nd and 3^rd Applicants applied to this court for a certificate under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Chapter 484 for points of law which they say are of great and general importance.

2.The points of law that the 1^st Applicant is seeking to certify are as follows:

“For the offence of failing to comply with a notice served on a foreign agent or Taiwan agent to provide information contrary to section 3(3)(b) of Schedule 5 to the Implementation Rules for Article 43 of the Law of the People’s Republic of China on Safeguarding National Security in the HKSAR (Instrument A406A) (“the Offence”), what are the elements of the offence? 

In particular,

(1)  Is it an element of the offence that the subject organisation involved was a foreign agent or Taiwan agent? 

(2)  Is the legality of the subject notice an element of the offence that is open to challenge by way of defence?”

3.The points of law that the 2^nd and the 3^rd Applicants are seeking to certify are as follows:

“(1) Is the prosecution required to prove that the Notice was, as a matter of fact, served on a foreign or Taiwan agent as defined in section 1 of Schedule 5?

(2) In determining if a defendant can raise a collateral challenge in non-constitutional challenges in a criminal prosecution, whether the “same person” test stated in HKSAR v Chow Hang Tung [2024] HKCFA 2 applies in all such cases or it depends on the construction of all the relevant offence-creating statutory provisions?

(3) If the answer to question (2) is that the “same person” test is not conclusive, can a defendant challenge a Notice’s legality by way of defence to an information alleging an offence of non-compliance under section 3(3)(a) and 3(3)(b) of Schedule 5?

(4) Did the Notice go beyond requiring “information” by requiring the production of “documents”?

(5) Whether Schedule 5 is exempt from data protection principle 3 under Schedule 1 of the Personal Data (Privacy) Ordinance, Chapter 486 regarding the use of personal data held by a foreign or Taiwan agent?

(6) Could the Notice require the production of information which existed before the promulgation of the National Security Law or the making of Schedule 5?”

4.In addition, the 2^nd and the 3^rd Applicants are also applying for bail pending appeal under section 34(1) of the Hong Kong Court of Final Appeal Ordinance.

5.The test for certification is clear and well settled:

(1)  Whether there are points of law of great and general importance involved; and

(2)  Whether such points of law are reasonably arguable.

6.In respect of the 1^st Applicant’s question (2) and the other Applicants’ questions (2) and (3), I consider that there is no point of law of great and general importance engaged because the legal principles relating to collateral challenges are now well-settled by the Court of Final Appeal in the recent judgment of HKSAR v Chow Hang Tung [2024] HKCFA 2 dated 25 January 2024.

7.In respect of the other proposed points by the Applicants, it is my view that they are only seeking to re-argue the issues that had already been raised both at trial and on appeal. For reasons set out in my judgment, I am not satisfied that any of the proposed points of law is reasonably arguable. All the Applicants’ applications are dismissed.

Mr Cheung Cheuk-kan Ivan, ADPP, and Miss Ng Ka-yuet Karen, SPP of the Department of Justice, for the Respondent

The 1^st Applicant appeared in person

Mr Philip John Dykes, SC, leading Mr Esmond C K Wong, instructed by Kenneth Lam, Solicitors, for the 2^nd and 3^rd Applicants