HKSAR v. Chow Hang Tung
Read the full judgment text of HCCC 155/2022 on BabelCite. This High Court CFI judgment was delivered on 10 February 2025.
1. Ms Chow Hang Tung is the 4 th defendant in this case (“ the applicant ”). In the case management hearing on 19 February 2024, she applied to the court for permitting several overseas witnesses to give evidence outside Hong Kong by live television link under section 79I of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong (“ CPO 79I ”).
Cited by 3 cases · Cites 4 cases
|
[English Translation - 英譯本] HCCC 155/2022 [2025] HKCFI 629 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE CRIMINAL CASE NO 155 OF 2022 __________________ BETWEEN
__________________
4th Defendant’s Application for Taking Evidence by Live Television Link from Overseas Witnesses REASONS FOR RULING Introduction 1.Ms Chow Hang Tung is the 4th defendant in this case (“the applicant”). In the case management hearing on 19 February 2024, she applied to the court for permitting several overseas witnesses to give evidence outside Hong Kong by live television link under section 79I of the Criminal Procedure Ordinance, Cap 221 of the Laws of Hong Kong (“CPO 79I”). 2.The Safeguarding National Security Ordinance (6 of 2024) (“NSO”) has come into force since 23 March 2024. Section 144 of the NSO (“NSO 144”) has amended CPO 79I, expressly providing that in cases concerning national security, the court shall not permit any person to give evidence to the court by way of a live television link from a place outside Hong Kong. 3.The applicant contended that the NSO 144 amendments were formulated to target at her application with no legitimate aim, and the court should declare the amendments unconstitutional and continue to deal with her application for using live television link. 4.The respondent contended that the section 144 amendments did meet the constitutional requirements and hence the court should refuse the application. 5.On the day of the hearing, having heard submissions from both sides, we ruled that the section 144 amendments were not unconstitutional and refused the application. Here are our reasons. Background 6.The applicant and three other defendants jointly faced one charge of “incitement to subversion”. The case was set down for trial before us in the Court of First Instance of the High Court. It was in the case management questionnaire sent on 15 January 2024 that the applicant for the first time mentioned that several defence witnesses were staying overseas and she hoped that they could give evidence by live television link. 7.Subsequently, in the case management hearing on 19 February 2024, the applicant confirmed that an application would be made to the court under CPO 79I, seeking permission for the said overseas witnesses to give evidence to the court by television link outside Hong Kong. 8.CPO 79I provides that subject to subsection (2), a court may, on the application of a party to any criminal proceedings, permit a person, other than a person who is a defendant in the proceedings concerned, to give evidence to the court by way of a live television link from a place outside Hong Kong. 9.The NSO was gazetted and came into effect on 23 March 2024, and section 79I, after being amended by NSO 144, provides that the court shall not give permission under section 79I in cases concerning national security. 10.On 19 March 2024, as directed by this court, the applicant filed and served materials relating to the identities of the five overseas witnesses and the grounds in support of the application for them to give evidence by video link. 11.The respondent opposed this application, challenged the applicant’s grounds and on 21 October 2024 filed their objections with the court. 12.This hearing was for deciding whether the court should continue to deal with the application made by the applicant for using live television link, whilst the relevancy of the overseas witnesses’ evidence was not an issue for consideration. Relevant statutory provisions 13.After amendment, the provisions of CPO 79I read as follows (emphasis added):
Applicant’s grounds 14.The applicant’s grounds may be summarised under three heads as follows. 15.First, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China (“Basic Law”) and the Hong Kong Bill of Rights Ordinance (Cap 383) (“HKBORO”) safeguard the rights of being equal before the law and having a fair trial, and calling witnesses is an essential element of equality of arms in a fair trial. The applicant submitted that the section 144 amendments deprived the court of its discretionary power to permit overseas witnesses to give evidence by video link, thereby creating disparate treatment between the parties in national security and non-national security cases, and such disparity had no legitimate aim but undermined the right of having a fair trial and the right of equality and contravened the “proportionality” requirements. Therefore, section 144 should be declared unconstitutional and void. 16.Secondly, back in mid-January 2024, the applicant had indicated the intention to apply for giving evidence by video link from overseas witnesses. The Government of the Hong Kong Special Administrative Region (“HKSAR”) launched a public consultation exercise on the Safeguarding National Security Bill (“the Bill”) on 30 January 2024, whilst the amendment to CPO 79I was never mentioned in the consultation document. Therefore, it could be seen that the section 144 amendments were requirements designed to target at her application. 17.The third ground was put forward recently by the applicant at the hearing in respect of an affidavit of Mr Simon Wong, Principal Assistant Secretary for Security, dated 21 October 2024, submitted by the respondent. The affidavit revealed the judgements and decisions made by the Committee for Safeguarding National Security of the Hong Kong Special Administrative Region (“NSC”) on the Bill. The applicant challenged the functions of those judgements and decisions. Constitutional challenges and the relevant legal principles 18.The Hong Kong courts have the long established five-step approach to deal with constitutional challenges:[1]
19.In respect of assessment of “proportionality”, the Court of Final Appeal in Hysan Development Co Ltd v Town Planning Board [2] established that the court must apply the following four-step test:
20.In respect of the present case, the relevant constitutional rights[3] are the right of being equal before the law and that of having a fair trial, and the relevant measure is the amendments to CPO 79I made under NSO 144. Equal treatment before the law 21.In response to the applicant’s contention that the section 144 amendments have created disparate treatment between the parties in national security cases and those in cases not concerning national security, Mr Ivan Cheung, ADPP, acting for the respondent submitted that such contention could not stand, which was mainly because comparison could only be made under similar situations, and if there was different treatment under similar situations, the court had to apply the test of “arguability” to see if there was any good reason in support. 22.We agree with the respondent. The Court of Final Appeal stated in SJ v Yau Yuk Lung [4]:
23.In that case, Li CJ said that equality before the law was a fundamental human right, that is in essence the right not to be discriminated against. The law should generally accord similar treatment to comparable situations.[5] 24.In HKSAR v Hon Ming Kong & Ors, the Court of Appeal, when discussing the principle of “equality of arms”, also pointed out that in the context of witnesses, a fair trial meant that the right of an accused to call witnesses was under the same conditions as the prosecutor[6]:
25.In addition, section 11(2)(c) of the HKBORO provides as follows:
26.It can be seen from the above cases and statutory provisions that equality before the law refers to how the two sides in the same case are treated. 27.As such, it is our view that in considering if the amendments made under section 144 have created disparate treatment to the applicant, comparison should not be made between the parties in national security and non-national security cases, but should be made to see if the defence and the prosecution in similar situations in a national security case were treated similarly. 28.The amendments made under section 144 are applicable to all criminal proceedings concerning national security, thereby not permitting both the prosecution and defence to call any overseas witness to give evidence outside Hong Kong by television link. Both sides are subject to the same restrictions with no difference in treatment. Nothing unfair is done to the defence, and there is no contravention of the principle of equality of arms of the two parties in the litigation. 29.It is worth noting that in criminal proceedings, it is an undisputed primary principle that witnesses should be present in court to give evidence, and the parties of the case are duty-bound to have this done. Unless both the prosecution and defence agree a witness to give evidence by way of a written statement or admitted facts, the witness must appear in person before the court to give evidence. Taking evidence by way of live television link under CPO 79I is not permitted as of right, and can only be adopted with the leave of the court under specific conditions. Proportionality assessment 30.One must look into the background and aim of the Basic Law Article 23 Legislation to review if the section 144 amendments have a legitimate aim. 31.The Hong Kong Special Administrative Region has a constitutional duty to uphold national sovereignty, unity and territorial integrity. The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“HKNSL”) provides that it is the duty of the Hong Kong Special Administrative Region under the constitution to safeguard national security and the HKSAR shall perform the duty accordingly[10]. The relevant duties include full enforcement of the HKNSL and the laws in force in the HKSAR concerning the prevention, suppression and imposition of punishment for acts and activities endangering national security[11]. 32.It is specified in the Public Consultation Document of the Safeguarding National Security: Basic Law Article 23 Legislation (“the Public Consultation Document”) [12]:
33.The legislative proposals include “[building] supplementary provisions upon the HKNSL for procedural matters in relation to cases concerning national security. A number of mechanisms and safeguards for upholding national security will be established, and certain existing legislation will be amended, so as to improve the HKSAR’s regime for safeguarding national security as a whole.” (emphasis added)[13] 34.Chapter 9 of the Public Consultation Document explores ways to improve matters relating to the legal system and enforcement mechanisms for safeguarding national security, including “existing provisions on law enforcement powers and procedural matters relating to safeguarding national security” (emphasis added)[14] 35.The minutes of the meeting of the Bills Committee on the Safeguarding National Security Bill (“the Bills Committee”) held on 12 March 2024 show that in the course of examining the clauses of the Bill, members of the Legislative Council did raise questions on the amendments made to section 79I. Some members were concerned about how a witness giving evidence by means of live television link in a national security case could avoid the possibility of being coached by someone behind the scene in giving evidence, perverting the course of justice[15]. 36.The Administration in the response advised that:
37.It is apparent from the above that the related amendments are made for the specific aims of safeguarding and protecting national security and upholding the administration of justice, of which the legality and propriety are unquestionable. 38.If no related amendments under section 144 were made, and witnesses overseas were allowed to give evidence outside Hong Kong to the court in national security cases, and the HKSAR Government had not been able to take any (or sufficient) measures or establish any (or sufficient) mechanism to prevent or reduce the harassment against witnesses or tampering with evidence, this would not only risk a perversion of justice, but also pose national security risks. The related amendments are obviously associated with the specific legitimate aims of precluding the national security risks and upholding the administration of justice. 39.As to the issue whether the related restriction is no more than necessary to accomplish the legitimate aim, it is clear that the section 144 amendments involve only applying limited regulation on the mode of calling witnesses. Not only does the primary principle requiring witnesses to give evidence in person in court remain unchanged, but also the parties’ right of calling witnesses is unaffected, without prejudicing a defendant’s right to a fair trial. 40.In criminal proceedings, the burden of proof rests with the prosecution, and the defendant is not obliged to prove innocence or indeed anything. The defendant has no obligation to give evidence or call any witness. The defence may be run by challenging the prosecution evidence/witnesses. Apparently, the section 144 amendments affect the defence in a very limited extent. 41.Furthermore, as the respondent has submitted, the right of having a fair trial is to ensure “the trial being basically fair” rather than having “a perfect trial” or a trial “most favourable” to the defendant. 42.In our view, the amendments made under section 144 are no more than necessary to accomplish the related legitimate aim. 43.The applicant’s allegation that the Bill has been passed with no amendment, no question raised by the Legislative Councillors on the section 144 amendments and no statement or explanation made by any official, were lack of factual basis. 44.Before finalising the clauses of the Bill, the Government conducted a public consultation exercise from 30 January to 28 February 2024, during which 98.6% of the submissions received showed support and positive comments, indicating that the legislation had a strong popular support. 45.During the public consultation period, the Government had held nearly 30 consultation sessions to meet with representatives from various sectors. A total of 13,489 pieces of opinion submitted by email, post and facsimile were received. Among them, 13,297 showed support and made positive comments, 95 purely contained questions or opinions therein that could not reflect the authors’ stance, and 97 opposed the legislative proposals. Out of the 97 submissions opposing the proposals, 9 were from external anti-China organisations, 3 from persons with names identical to absconders, and 1 from a person who had been prosecuted against the offence of endangering national security pending trial.[16] 46.Subsequently, on 23 February 2024, the Legislative Council set up a subcommittee and commenced the study of matters relating to the exercise of Basic Law Article 23 Legislation. The subcommittee consisted of 15 members and has had discussion with the Administration for nearly 50 hours. 47.The Bills Committee examined the Bill (including the amendments to section 79I)[17] clause by clause, and proposed necessary amendments to the Administration. In the course of it, a total of 15 Legislative Councillors spoke, and the Administration responded to the comments and questions raised by them. It can be seen that the applicant’s allegation that the Legislative Council was just a “rubber stamp” that simply accepted every clause stated in the Bill was not true. 48.The facts show that the Administration has been cautious and prudent in giving consideration throughout the legislative process. Each clause of the Bill has been examined by the Bills Committee to ensure that the reasons for imposing the restrictions must be reasonably connected with upholding national security and the administration of justice. 49.The applicant alleged there being no evidence to show that the national security cases were subject to greater harassment against witnesses and tampering with evidence, and hence what the Administration said could not stand. We take the view that in making such allegations, the applicant just completely ignored the existence of various persons and organisations outside Hong Kong that have been persistently carrying out activities endangering national security, and she also disregarded the unfriendly and even hostile attitude that some countries have taken towards China. 50.In the Public Consultation Document, the Security Bureau of the HKSAR Government has set out the national security risks faced by the HKSAR in recent years in detail[18], including territory-wide large-scale riots; extensive damage of public infrastructure; incitement of public hatred against the fundamental system of the State, the Central Authorities and the bodies of power of the HKSAR; promoting messages endangering national security; risk of theft of state secrets; increasing threat of foreign espionage and intelligence operations; barbaric and gross interference from foreign governments and politicians in China’s internal affairs; grooming of agents by external forces and organisations endangering national security. It can be seen that the risks and threats endangering national security truly exist. Apart from effectively safeguarding national security, there is even greater need that the relevant measures can effectively cope with national security risks that may emerge in future. 51.In our view, the related amendments have struck a reasonable balance between the societal benefits of precluding national security risks and upholding the administration of justice on one hand, and the personal right of having a fair trial by individuals on the other. The amendments have passed the proportionality test and met the constitutional requirements. Were the amendments targeted at the applicant? 52.The applicant submitted that her case management questionnaire sent out in January 2024 had already mentioned her wish of having several overseas witnesses to give evidence by live video link, and subsequently at the case management hearing on 19 February 2024, she confirmed that an application under CPO 79I would be made. The applicant alleged that the Public Consultation Document had no mention of any amendment to be made to section 79I, nor was it stated in the Bill. She contended that the wording, legislative chronology and background of section 144 clearly indicated that the said amendment was a rule designed to target on this case for ensuring that this application failed. 53.In this regard, we shall consider the chronology of the events relating to the amendments. Chronology of events relating to the legislation 54.On 28 May 2020, the Decision of the National People’s Congress (“NPC”) on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security (“5.28 Decision”) was adopted, in which Article 3 reiterates the constitutional duty of the HKSAR of upholding national sovereignty, unity and territorial integrity. The HKSAR must complete the national security legislation stipulated in the Basic Law at an earlier date. The administration, the legislature and the judiciary of the HKSAR must, in accordance with relevant laws and regulations, effectively prevent, stop and punish acts and activities endangering national security. 55.After that, pursuant to 5.28 Decision, the Standing Committee of the NPC (“NPCSC”) formulated and adopted the Hong Kong National Security Law (“HKNSL”). On 30 June 2020, the NPCSC made a proper decision to include the HKNSL as a piece of national law in Annex III of the Basic Law, and on the same day, the HKSAR Government announced that the implementation of the HKNSL in the HKSAR commenced from 11 pm on 30 June 2020. 56.The Security Bureau of the HKSAR Government conducted a public consultation on the Basic Law Article 23 Legislation between 30 January and 28 February 2024. Having carefully considered the views collected, the HKSAR Government finalised the provisions contained in the Bill. Part 9 of the Bill contains the amendments related to certain provisions. In paragraph 66 which relates to the amendments to the CPO, subparagraph (b) states, “[m]aking amendments to [CPO 79I] to exclude from its related application criminal proceedings of cases concerning national security.” 57.The Bill was published in the Gazette on 8 March 2024 and received its First Reading at the Legislative Council. 58.On 12 March 2024, the Bills Committee continued with the clause-by-clause examination on the Bill. The Administration responded to the comments and questions raised by the Legislative Councillors. A total of 15 Legislative Councillors spoke. 59.On 19 March 2024, the Second Reading of the Bill resumed in the Legislative Council, and the Third Reading was passed through. It was subsequently published in the Gazette and came into effect on 23 March. 60.According to the chronology of the events relating to the legislation, the Administration finalised the details of the clauses of the Bill only after the public consultation, and the applicant therefore was not aware of the provisions of the relevant amendments when she made the section 79I application. However, it can be seen from the Public Consultation Document that back in January 2024, the Government had already indicated that supplementary requirements would be made for procedural matters of NSL cases, and certain existing legislation would also be amended to improve the HKSAR’s regime for safeguarding national security as a whole.[19] 61.As seen from the “Related Amendments” of Part 9 of the Bill, quite a few enactments are amended,[20] involving a lot of related enactments and covering a wide spectrum. So it is not surprising that the Government could not list out all of them in detail during the consultation period. 62.The applicant’s allegation that the Administration amended section 144 for the sole purpose of targeting at her application is purely speculative. Moreover, there is practical need that the related amendments remove national security risks and uphold justice. It is irrelevant whether the applicant has made the present application or not. NSC judgements and decisions 63.The respondent clarified at the hearing that the document produced to the court containing NSC judgements and decisions[21] was for the court’s reference only in dealing with the present legal arguments, and it had never been provided to the Legislative Councillors in the course of the legislative process. That is to say, neither the Legislative Council nor the Bills Committee has made any reference at all to the NSC judgements and decisions in examining the clauses of the Bill. 64.The respondent has clarified that the said document was not made a reference by the Legislative Council in the legislative process. Furthermore, since we have already ruled on the constitutionality of the amendments made to section 79I, we do not think it necessary to deal with this issue concerning the NSC judgements and decisions. Conclusion 65.In the light of the above, we refuse the application made by the applicant for adducing witnesses’ evidence by live television link.
The Applicant appeared in person. Mr Cheung Cheuk Kan, Ivan, Assistant Director of Public Prosecutions and Miss Ng Ka Yuet, Karen, Senior Public Prosecutor, of the Department of Justice, for HKSAR. Translated by the Court Language Section of the Judiciary and vetted by Ms Jenny Chung, Solicitor. [1] HKSAR v Ng Ngoi Yee Margaret (2024) 27 HKCFAR 434 [17]-[19] [2] (2016) 19 HKCFAR 372 [3] Articles 25, 39 and 87 of the Basic law and sections 10, 11 and 22 of the HKBORO [4] (2007) 10 HKCFAR 335 [19] [5] [9]-[10] and [19] [6] [2014] 3 HKC 160 [469] [7] U.N. Covenant on Civil and Political Rights: CCPR Commentary, Manfred Nowak, 2nd revised edition p 341 para 65. [8] Noor Muhammad: Due Process of Law for Persons Accused of a Crime in Louis Henkin: The International Bill of Rights p 138 at 146. [9] Nowak, above, p 341, para 65. [10] Article 3 [11] Article 8 [12] Chapter 1, para 1.13, (Date: January 2024) [13] Chapter 2, para 2.28 [14] Preamble of Chapter 9 [15] Minutes of meeting of the Bills Committee, Legislative Council (12 March 2024) [005411]-[005736] [16] At the hearing, the applicant indicated that she was the very person who handed in her submission when being prosecuted for an offence of endangering national security and pending trial. [17] Minutes of meeting of the Bills Committee, Legislative Council (12 March 2024) [005411]-[005736] [18] Public Consultation Document, Chapter 2, para 2.6 [19] See para 33 above [20] Interpretation and General Clauses Ordinance (Cap. 1), Evidence Ordinance (Cap. 8), Companies (Winding Up and Miscellaneous Provisions) Ordinance (Cap. 32), Pensions Ordinance (Cap. 89), Post Office Ordinance (Cap. 98), Pension Benefits Ordinance (Cap. 99), Societies Ordinance (Cap. 151), Crimes Ordinance (Cap. 200), Criminal Procedure Ordinance (Cap. 221), Legal Aid in Criminal Cases Rules (Cap. 221[D]), Magistracies Ordinance (Cap. 227), Police Force Ordinance (Cap. 232), Prisons Ordinance (Cap. 234), Public Order Ordinance (Cap. 245), Education Ordinance (Cap.279), Trade Unions Ordinance (Cap. 332), Customs and Excise Service Ordinance (Cap. 342), Pension Benefits (Judicial Officers) Ordinance (Cap. 401), Hong Kong Arts Development Council Ordinance (Cap. 472), Post-Release Supervision of Prisoners Ordinance (Cap. 475), Official Secrets Ordinance (Cap. 521), Long-term Prison Sentences Review Ordinance (Cap. 524), Legislative Council Ordinance (Cap. 542), District Councils Ordinance (Cap. 547), Chief Executive Election Ordinance (Cap. 569) and Rural Representative Election Ordinance (Cap. 576). [21] Before the First Reading, the NSC had read the draft Bill and agreed the enactments therein to be necessary. Before the Third Reading, the NSC carried out examination again and agreed that the related amendments were necessary. |
Cases cited in this judgment
Other judgments that cite this case
Further hearings and rulings under HCCC 155/2022