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Hksar v Lai Chee Ying (黎智英)

Judgment Cited authorities 1 Cited in 1 Precedent Map Related
Vincent
Judgment Date31 December 2020
Neutral Citation[2020] HKCFA 45
Judgement NumberFAMP1/2020
Subject MatterMiscellaneous Proceedings
CourtCourt of Final Appeal (Hong Kong)
FAMP1/2020 HKSAR v LAI CHEE YING (黎智英)

FAMP No. 1 of 2020

[2020] HKCFA 45

IN THE COURT OF FINAL APPEAL OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

MISCELLANEOUS PROCEEDINGS NO. 1 OF 2020

(ON APPLICATION FOR LEAVE TO APPEAL FROM

HCCP NOS. 727 AND 738 OF 2020)

________________________

BETWEEN
HKSAR Applicant
and
LAI CHEE YING (黎智英) Respondent

________________________

Appeal Committee: Chief Justice Ma, Mr Justice Ribeiro PJ and Mr Justice Cheung PJ
Date of Hearing and Determination: 31 December 2020

________________________

DETERMINATION

________________________

The Appeal Committee:

1. On 2 December 2020, the respondent, Lai Chee Ying, was charged with one count of fraud. This was followed by his being charged on 12 December 2020 with one count of “collusion with a foreign country or with external elements to endanger national security” under Article 29(4) of the National Security Law[1] (“NSL”). The Chief Magistrate, Mr Victor So, refused bail in respect of both charges and remanded the respondent in custody.

2. On 23 December 2020, on the respondent’s application, Alex Lee J granted him bail pursuant to section 9J of the Criminal Procedure Ordinance[2] (“CPO”) subject to the respondent providing an undertaking in the following terms:

1. The respondent is to undertake not to engage directly or indirectly in conduct which may reasonably be regarded as requesting a foreign country or an institution, organization or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China (“PRC”), to impose sanction or blockade, or to engage in other hostile activities against the PRC and the Hong Kong Special Administrative Region.

2. In particular, the respondent shall not:-

(1) Meet with any officials of a foreign government;

(2) Attend or host any interviews, television, radio or online programmes;

(3) Publish any articles in paper or in digital form;

(4) Make any posts/comments/messages on social media platforms including but not limited to Twitter.”

3. Bail granted was also subject to the following conditions, namely:-

(a) Reside at address given;

(b) The respondent shall be confined to the said address except for reporting to police station and attending court;

(c) Not to leave Hong Kong;

(d) Surrender all travel documents prior to release;

(e) Report to Kowloon City Police Station every Monday, Wednesday and Friday between 3 and 6 pm;

(f) HKD 5 million cash for the Fraud case and HKD 5 million cash for the NSL case;

(g) Three sureties in the sum of HKD 50,000 each for the Fraud case and the NSL case respectively.”

4. Reasons for the Judge’s grant of bail were handed down on 29 December 2020.[3]

5. The prosecution seeks leave to appeal to the Court of Final Appeal and, if leave is granted, it seeks an order that the respondent be detained in custody pending the hearing of the Appeal or until further order.

Question 1

6. In applying for leave, the prosecution puts forward two questions, the first being as follows:

“Is a grant of bail by the Court of First Instance pursuant to section 9J of the Criminal Procedure Ordinance, Cap 221 ... in a High Court Miscellaneous Proceedings (Criminal) ... a final decision as against the prosecution under section 31(b) of the Court of Final Appeal Ordinance [sic] Cap 484 ...?”

7. Question 1 seeks to raise, as a general issue, whether the Court of Final Appeal has jurisdiction to hear an appeal against a Judge’s grant of bail. It does not address the position in cases involving the NSL.

8. Bail involves a criminal cause or matter and section 31 of the Court’s statute (“HKCFAO”)[4] sets out the Court’s jurisdiction to hear appeals as follows:

“An appeal shall, at the discretion of the Court, lie to the Court in any criminal cause or matter, at the instance of any party to the proceedings, from—

(a) any final decision of the Court of Appeal;

(b) any final decision of the Court of First Instance (not being a verdict or finding of a jury) from which no appeal lies to the Court of Appeal.”

9. The prosecution seeks to argue that the proposed appeal comes within section 31(b) so that jurisdiction exists. However, the contrary was held in a ruling by a single Permanent Judge in Pasa Danaville Dizon v HKSAR,[5] on the basis that determining a bail application does not involve a final decision:

“… Under s.31 of the Court’s statute, the Court has a discretion to grant leave to appeal only from any final decision of the Court of First Instance from which no appeal lies to the Court of Appeal. A final decision in that context must mean the lower court’s substantive decision disposing one way or another of the offence charged. A bail application does not involve any such determination. A decision to refuse or grant bail is not final. Bail granted can be revoked. The decision to refuse bail can be reopened on new circumstances being shown. …”

10. It was in reliance on Dizon that the Judge in the present case refused the prosecution’s application for a question to be certified for appeal to the Court regarding the construction of an Article of the NSL (referred to under Question 2 below). The prosecution seeks by Question 1 to challenge the correctness of Dizon.

11. The prosecution’s proposition is that such grant of bail is “a final decision as against the prosecution”. It is put as follows in the Application for Leave to Appeal:

“As far as bail application proceedings in the Court of First Instance are concerned (namely, the relevant HCCP proceeding), an accused may apply again to the [CFI] upon sufficient change of circumstances: see HKSAR v Siu Yat Leung [2002] 2 HKLRD 147. The refusal of bail, or a grant of bail conditions, is not final as against the accused who can apply again to the [CFI] and/or the court below for bail and/or variation of bail conditions as appropriate: see section 9G(11) of the CPO.

However, for the prosecution, upon a grant of bail by the [CFI] under section 9J of the CPO it has no recourse and cannot apply again to the [CFI] to revoke the bail of an accused. Contrary to the view in Dizon,which was relied upon by the Judge, it is submitted that a grant of bail by the [CFI] under section 9J of the CPO is a final decision against the prosecution.”[6]

12. As acknowledged in the passages just cited, CPO section 9G(11) makes it clear that an accused who has been refused bail may make further applications to the court.[7] This has led the prosecution to make the surprising submission (for which no authority is cited) that a decision can be final only in relation to one of the parties, but not the other. We examine below whether it is correct to say that the prosecution cannot make a fresh application to the CFI. But even assuming for the sake of argument that the prosecution cannot re-apply, the decision is still not final because the decision on bail can be re-opened and varied by the Judge on the application of the accused where there is a sufficient change in circumstances.

13. As a matter of policy and common sense, it is very hard to see why an accused should be permitted to re-apply for bail to the Judge but the prosecution should not similarly be able to apply for bail to be revoked. If, after grant of bail by a Judge, the prosecution should obtain evidence, for example, that the defendant is about to abscond from the jurisdiction or that he has been committing crimes or interfering with witnesses while on bail (all of which are grounds for refusing bail in the first place[8]), it would be surprising in the extreme if the prosecution could not immediately apply for bail to be revoked.

14. We do not think it reasonably arguable that once a Judge has granted bail, the prosecution “has no recourse and cannot apply again”. That proposition is inconsistent with CPO section 9K which states:

“(1) A police officer may without warrant arrest and detain any person admitted to bail if—

(a) the police officer has reasonable grounds for believing that any condition on or subject to which such person was admitted to bail has been or is likely to be broken; or

(b) any police officer has been notified in writing by any surety from whom a recognizance of bail has been taken for that person that the surety believes that that person is likely to fail to surrender to custody as shall have been appointed by a court and for that reason the surety wishes to be relieved of his obligations as surety.

(2) Any person arrested under subsection (1) shall be brought within 24 hours after his arrest or as soon as practicable thereafter before a magistrate except where he was so arrested within the period of 24 hours immediately preceding an occasion on which he is required by virtue of his bail to surrender to custody at any court, in which case he shall be brought before that court.

(3) If it appears to the court before which a person is brought under subsection (2) that any condition of admission to bail has been or is likely to be broken, the court may—

(a) order that that person be detained in custody; or

...

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