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Hksar v Lai, Chee Ying

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date29 December 2020
Neutral Citation[2020] HKCFI 3161
Judgement NumberHCCP738/2020
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of First Instance (Hong Kong)
HCCP727/2020 HKSAR v. LAI, CHEE YING

HCCP 727/2020 & HCCP 738/2020

(Heard together)

[2020] HKCFI 3161

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 727 OF 2020

________________________

BETWEEN
HKSAR Respondent

and
Lai, Chee Ying (黎智英) Applicant
________________________

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 738 OF 2020

________________________

BETWEEN
HKSAR Respondent

and
Lai, Chee Ying (黎智英) Applicant
________________________
(Heard Together)
Before: Hon Alex Lee J in Chambers (Open to Public)
Date of Hearing: 23 December 2020
Date of Ruling: 23 December 2020
Date of Reasons for Ruling: 29 December 2020

________________________

REASONS FOR RULING

________________________

Introduction

1. This is about the Applicant’s two applications for bail review pursuant to s9J of the Criminal Procedure Ordinance, Cap 210 (“CPO”). The matter was first listed before me on 15 December 2020. At that time, the Applicant was seeking bail from this court only in relation to WKCC 4217/2020 which is about a charge of “fraud”[1] (“the Fraud case”). However, on 11 December 2020 the Applicant was taken to court again by the prosecution for a new charge of “collusion with a foreign country or with external elements to danger national security”[2] (WKCC 4341/2020) (“the NSL case”) for which he was also refused bail. At the request of the Applicant, the hearing on 15 December 2020 was vacated so as to allow him time to file papers with a view to seek a bail review in relation to the NSL case as well.

2. On 23 December 2020, I heard the two applications for bail review together. Having considered the materials placed before me by the parties and having heard counsel, I granted bail to the Applicant on terms, saying that reasons would be handed down. This, I now do.

The Charges

3. As regards the Fraud case, it is about a lease made in May 1999 between the Hong Kong Science and Technology Parks Corporation as the landlord and Apple Daily Printing Limited (over which the Applicant has substantive control) as the tenant. The subject premises is a site at Tseng Kwan O Industrial Estate. The allegation is that between 27 June 2016 and 22 May 2020, the Applicant together with two others defrauded the landlord by concealing and making false representation about the use of the subject premises by a secretarial company (called “Dico”[3]) for purposes not permitted under the lease. It is alleged that the fraud on the one hand allowed Apple Daily Printing to receive rental fees for the period at least between 2011 and 2014 and on the other hand allowed Dico to pay less than it would otherwise have to for a substitute.

4. As regards the NSL case, it is alleged that between 1 July 2020 and 1 December 2020, the Applicant requested a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China (“PRC”), to impose sanctions or blockade, or engage in other hostile activities against the PRC or the Hong Kong Special Administrative Region (“HKSAR”). The charge, I note, is based on what the Applicant had allegedly said in articles published in Apple Daily, in interviews with various overseas media and in Twitter posts. It is noted that during the charge period, the United States passed legislation and imposed financial sanctions on officials of the PRC and the HKSAR.

The Respondent’s objection

5. The Respondent has advanced four grounds of objection:

(a) the two charges are serious and the evidence against the Applicant is “strong” and therefore substantial terms of imprisonment are likely in case of conviction;

(b) in view of matters including (a) above, there are substantial grounds for believing that the Applicant would fail to surrender to custody as the court may appoint: s9(1)(a), CPO;

(c) there are also substantial grounds for believing that the Applicant would commit an offence whilst on bail;

(d) as regards the NSL case, there are insufficient grounds for believing that the Applicant will not continue to commit acts endangering security for the purpose of NSL 42(2). To the contrary, given the nature of the case, there are substantial grounds for believing that the Applicant will continue to commit such acts if bail is granted to him.

6. Mr Chau for the prosecution also draws my attention to the following outstanding trials that the Applicant is facing:

(1) DCCC 536/2020
Offence date: 18 August 2019
Charge: (i) Organizing an unauthorized assembly; and
(ii) Knowingly taking part in an unauthorized assembly
First appearance: 18 May 2020 (WKCC 1266/2020)
Next hearing date: 5 January 2021 for Pre-Trial Review
Trial dates: 16 February to 1 March 2021
Bail condition: $1000 cash bail
(2) DCCC 537/2020
Offence date: 31 August 2019
Charge: Knowingly taking part in an unauthorized assembly
First appearance: 5 May 2020 (WKCC 957/2020)
Next hearing date: 8 March 2021 for PTR (DCCC 537/2020)
Trial dates: 7-15 April 2021
Bail condition: $1000 cash bail
(3) DCCC 534/2020
Offence date: 1 October 2019
Charge: (i) Organizing an unauthorized assembly; and
(ii) Knowingly taking part in an unauthorized assembly
First application: 18 May 2020
Next hearing date: 19 April 2021 for PTR
Trial dates: 17-31 May 2021
Bail condition: $1000 cash bail
(4) DCCC 872/2020
Offence date: 4 June 2020
Charge: Incitement to knowingly take part in an unauthorized assembly
First mention date: 13 July 2020 (ESS 13461/2020)
Next hearing date: 5 February 2021 for mention (DCCC 872/2020)
Bail condition: none (as D1 was summonsed for the offence)

7. My attention has also been drawn to the fact that the incident giving rise to DCCC 872/2020 and the present two offences are said to have occurred whilst the Applicant was on bail for other matters. I bear in mind that this is relevant to the Applicant’s risk of committing further offences, if bail is granted. I also have regard to other factors listed in s9G(2), CPO when I consider whether bail should be granted to the Applicant in all the circumstances.

Legal principles

8. The legal principles applicable to a bail review under s9J, CPO are well-known and have been summarized in HKSAR v Vu Thang Duong[4]and HKSAR v Wong Chi-fung[5]. As regards bail applications for accused charged for offences under the NSL, the relevant legal principles have been considered in Tong Ying Kit v HKSAR[6] and HKSAR v Tong Ying Kit[7]. All of which, I am not going to repeat now.

Merits of the application

As to (a): nature and seriousness of the offence and the weight of the evidence

9. I bear firmly in mind that it would be premature to have any form definite view under this head as the investigation is still on-going. Moreover, it would be inappropriate for the bail court to say anything which may be taken to have any influence on the trial court. That said, since it is necessary for this court to explain how the ruling is arrived at, caution will be exercised when giving the reasons below.

The fraud case

10. As regards the fraud charge, I note that it is not the prosecution case as pleaded in the charge that the lease was obtained in by deceit; otherwise the charge period would start in May 1998 when the lease commenced. As to why the charge period begins on 27 June 2016, I am told that this is because the documents from the Company Registry show that Dico has been providing company services to others since that day.[8] In other words, based on the present state the evidence the unpermitted user began in June 2016.

11. An issue then arises as to whether the prosecution’s case for “deceit” is one of omission or commission: see s16(3), Cap 210. If it is the former, whether there was a special relationship between the tenant and the landlord or whether the lease was of a special nature so that the concealing party (the defendants) had a duty to disclose the relevant fact to the landlord: see HKSAR v Chan Shu-hung[9]. It may be that the prosecution can in due course establish a duty to disclose on the part of the defendants. However, the material before me now is not at all clear on this point and the defence seems to have an arguable case that the defendants did not owe such a duty.

12. Mr Chau informs me that, apart from relying on deceit by way of omission, the prosecution also relies on an allegedly false statement of one of the co-accused made in April 2020 that “Dico does not occupy and is not operating” on any part of the subject premises.[10] Noting that the charge period ends on 22 May 2020, this representation, if shown to be false, came only towards to the end of the alleged offence and not from the Applicant. Whether this representation is admissible against the Applicant, for example pursuant to the co-conspirator rule, remains to be seen.

13. Secondly, there is an issue of “dishonesty” which, according to HKSAR v Lam Hin Fai[11], was an element imported into the offence of fraud. In this regard, I am told that:

● “According to the Companies Registry (“CR”) records of Dico, the address of registered office of Dico had been the Premises since 1998-04-01.”[12]

● “Apply Daily...

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