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Hksar v Ma Chun Man

Judgment Cited authorities 5 Cited in Precedent Map Related
Vincent
Judgment Date29 December 2020
Neutral Citation[2020] HKCFI 3132
Year2020
Judgement NumberHCCP711/2020
Subject MatterMiscellaneous Proceedings (Criminal)
CourtCourt of First Instance (Hong Kong)
HCCP711/2020 HKSAR v. MA CHUN MAN

HCCP 711/2020

[2020] HKCFI 3132

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 711 OF 2020

________________________

BETWEEN
HKSAR Respondent

and
MA CHUN MAN Applicant

________________________

Before: Hon Alex Lee J in Chambers (Open to Public)
Date of Hearing: 15 December 2020
Date of Ruling: 15 December 2020
Date of Reasons for Ruling: 29 December 2020

________________________

REASONS FOR RULING

________________________

Introduction

1. On 15 December 2020, I dismissed the Applicant’s application for bail pending trial and said that reasons for the decision would be handed down in due course. This, I now do.

Factual background

2. The Applicant is charged with one charge of incitement to secession, contrary to Articles 20 & 21 of the Law of the People’s Republic of China (“PRC”) on Safeguarding National Security in the Hong Kong Special Administrative Region (“HKSAR”) in Schedule to the Promulgation of the National Law 2020 (“NSL”). It is alleged that the Applicant, between 15 August 2020 and 22 November 2020, in Hong Kong, incited other persons to organise, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification, namely separating the HKSAR from the PRC or altering by unlawful means the legal status of the HKSAR.

3. The charge is based on a series of 19 incidents which took place between 15 August 2020 and 22 November 2020. It is alleged that in that 3-months’ time, the Applicant had persistently chanted slogans and displayed placards advocating for independence of Hong Kong. Notably, some of the slogans he chanted included: “民族自強 香港獨立 香港人建國” (Ethnic Enhancement, Hong Kong Independence, Hong Kong People to Establish Our State); “光復香港 時代革命” (Liberate Hong Kong, Revolution of Our Times); “香港獨立 唯一出路” (Hong Kong Independence, The Only Way Out); “全民勇武” (All People be Valiant); and “武裝起義” (Armed Revolt). It is said that on many occasions, some people in the vicinity responded to the Applicant’s slogans by chanting along.

4. The prosecution also says that over the same period, the Applicant had been interviewed on several occasions by some online media in which, among other things:

(a) he reiterated that his demand was the independence of Hong Kong and that discussing and advocating that was a civil right;

(b) he urged the public to come out and gather together to chant slogans on the 8th, 15th, 21st, 22nd and 31st of every month to promote the will of independence and to spread that idea in every primary school, secondary school and university in order to make more people believe that independence was the only way out and was feasible and to mull over the next “Revolution of Our Times”;

(c) he explained what he meant by “Liberate Hong Kong, Revolution of Our Times” in that the former means “recapturing the sovereignty of Hong Kong from the PRC and establishing a Republic of Hong Kong” and the latter means “a revolution that overthrows” the present regime and “makes independence come true”; and

(d) he advocated that the “revolution” has started and asked the public to prepare for the fight. He said that their present strength was not sufficient and there was a need to “sow more seeds”. That was the reason why he insisted on doing what he did.

The prosecution says that all those interviews were captured by videos, posted on the Internet and were widely circulated.

5. It should also be noted that out of the 19 incidents, the Applicant was arrested 6 times for offences of “sedition” or “incitement to secession” before he was eventually charged. He had said that the NSL “is but an ornament” and he asked people to “be bold to trample the legal bottom line and come out to stage protest”.

The proceedings below

6. The Applicant first appeared in court on 24 November 2020 before the Chief Magistrate sitting at West Kowloon Magistracy. No plea was taken and the case was adjourned to 10 February 2021 for mention. On the same occasion, the learned magistrate refused the Applicant bail as he considered that there were substantial grounds for believing that the Applicant would commit an offence whilst on bail: see s9G(1)(b), Criminal Procedure Ordinance (“CPO”), Cap 221. As a result of that refusal, the Applicant seeks a bail review before this court: see s9J, CPO[1].

The present application

7. Mr Harris, SC (and with him, Mr Lam), counsel for the Applicant, makes the following submissions in support of the bail review:

(i) There is now a much reduced risk of “re-offending”. The court is told that the Applicant has changed his previous position in the lower court where he refused to give an undertaking not to repeat pro-independence slogans or expressions of view. Now, the Applicant is willing to give such an undertaking which is to be pledged with stringent terms including substantial amounts of cash and cash surety, reporting condition, curfew and travel restriction, if bail is granted.

(ii) There is not a likelihood of conviction. It is submitted that Articles 20 & 21, NSL, correctly interpreted in a way consistently with the Basic Law (“BL”), does not criminalize “peaceful advocacy of secessionist ideas” of which the Applicant was accused. Reference is made to Handywside v the United Kingdom[2] (cited with approval in Leung Kwok Hung & Others v HKSAR[3]) and Boucher v R[4].

(iii) There is not a likelihood of a lengthy sentence. It is submitted that if the facts of this case amount to an offence at all, it is of a relative minor nature which would call only for a short-term imprisonment or a community service order. Reference is made to the penalty provisions in NSL 21 & 64. Moreover, as the prosecution has indicated the District Court as the likely venue, it is estimated that the trial would be unlikely to commence until the second half of 2021. Hence, injustice may be resulted if the Applicant’s detention period exceeds his eventual sentence.

8. Mr Chau (and with him, Ms Chan) for respondent opposes the application and submits that there are substantial grounds for believing that the Applicant would commit an offence whilst on bail and fail to surrender to custody: s9G, CPO.

Legal Principles

9. The legal principles applicable to a bail review under s9J, CPO are well-known and have been summarized in HKSAR v Vu Thang Duong[5]and HKSAR v Wong Chi-fung[6]. 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[7] and HKSAR v Tong Ying Kit[8]. I am not going to repeat those.

Consideration

As to (2): The interpretation of NSL

10. Purely for the sake of convenience, I would like to first consider Mr Harris’s submission on (2) above which is about the interpretation of NSL 20 & 21 in the light of the BL. Since this point has been raised by counsel, it is only right for this court to explain why the Applicant’s submissions are not accepted which results in the refusal of his application. However, this court will be guarded not to express any definite view on the elements of the offences as created by the two articles. Firstly, what this court is asked to decide is only whether bail should be granted to the Applicant in the face of the attendant risks. Matters pertaining to the trial should be left to the trial court. Secondly, parties have submitted briefly on this topic and this court does not have the benefit of any thorough research from counsel. Therefore, what this court is going to say below is bound to be preliminary in nature and should not be taken to have any influence on the trial court whatsoever.

11. The likelihood of conviction is relevant as regards whether the Applicant would be a flight risk. Furthermore, if what the Applicant is alleged to have done would not in law amount to an offence at all, then there would not be any evidential basis for the prosecution to say that he would commit an offence whilst on bail.

12. This court accepts that in the present case concerns the Applicant’s right and freedom guaranteed under BL 27 is engaged:

“Article 27

Hong Kong residents shall have freedom of speech, of the press and of publication; freedom of association, of assembly, of procession and of demonstration; and the right and freedom to form and join trade unions, and to strike.”

13. Moreover, Article 16 of the Hong Kong Bill of Rights (“BOR”)[9], which provides for the freedom of opinion and expression, is also pertinent. As pointed out by the Court of Final Appeal in Comilang Milagros Tecson v Director of Immigration[10], our courts have consistently held that by enacting Hong Kong Bill of Rights Ordinance (“HKBORO”), Cap 383, the fundamental rights guaranteed by the BOR set out in Part II of the Ordinance, have not merely been incorporated domestically but, by virtue of BL 39, incorporated as part of the BL and given constitutional effect. This is the consequence of BL 39(2) which protects the rights and freedoms of Hong Kong residents against restrictions which “contravene the provisions of the preceding paragraph of this Article”, such provisions being for present purposes the ICCPR as applied to Hong Kong and incorporated via HKBORO. See also HKSAR v Ng Kung Siu[11] where it is held that BOR 16, dealing with freedom of expression, is incorporated into the BL by virtue of BL 39.

14. As regards the construction of the BL, it is now firmly established that the court adopts, under the common law, a purposive approach. In particular, the courts should give a generous interpretation to the rights guaranteed by Chapter III of the BL whilst restrictions to them should be narrowly...

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