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HCCP 575/2019
[2020] HKCFI 392
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
MISCELLANEOUS PROCEEDINGS NO 575 OF 2019
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HKSAR |
Respondent |
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and
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WONG CHI FUNG |
Applicant |
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Before: Hon Alex Lee J in Chambers (Open to Public)
Date of Hearing: 23 January 2020
Date of Ruling: 23 January 2020
Date of Reasons for Ruling: 5 March 2020
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REASONS FOR RULING
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Introduction
1. On 23 January 2020, I dismissed the Applicant’s application for variation of bail seeking permission to leave Hong Kong for a period in February. I said that reasons for the decision would be handed down in due course. This, I now do.
Factual background
2. The following brief chronology of events, which is not in dispute, is gleaned from the respective skeleton submissions of the Applicant and the Respondent.
3. On 30 August 2019, the defendant was arrested in relation to an incident which occurred on 21 June 2019 in Admiralty. On the same day, he was taken to the Eastern Magistracy[1] with three charges laid against him as follows:
(1) incitement to knowingly take part in an unauthorised assembly;
(2) organizing an unauthorised assembly; and
(3) knowingly taking part in an unauthorised assembly.
The learned principal magistrate[2] (“the Magistrate”) granted the Applicant bail on certain conditions including, among other things, a curfew, a prohibition that he is not to enter a specified area (which covered Queensway) and also a travel restriction that he is not to leave Hong Kong (save and except certain pre-arranged trips[3] which he had informed the Magistrate about). The Applicant had since made the aforesaid pre-arranged trips and returned.
4. On 5 October 2019, the Applicant took part in a procession and set foot in Queensway. The Magistrate therefore issued a warning reminding him not to breach the bail condition again.
5. On 21 October 2019, upon the Applicant’s application, the Magistrate shortened his curfew period so as to enable him to prepare for the District Council Election.
6. On 8 November 2019, the Applicant applied to the Magistrate asking that the travel restriction be lifted between 26 November 2019 and 17 December 2019 so that he could attend congressional hearings in European countries and give speeches at overseas university (which included giving a speech to the Oxford Union). The Magistrate considered the proposed trip dispensable and she refused the application.
7. The Applicant then applied to this court for a bail review. On 19 November 2019, Toh J refused the bail view with detailed written reasons[4] given.
8. On 19 December 2019, the Applicant applied to the Magistrate again asking for the lifting of the travel restriction between 9 January 2020 and 23 February 2020. The Applicant said that he intended to: (1) go to Taiwan between 9 January 2020 and 13 January 2020 to observe the presidential election there; (2) go to the United Kingdom between 4 and 11 February 2020 to give a speech at the Oxford Union; and to promote his newly published book for Penguin Random House. The Magistrate refused the Applicant’s application, saying that he had made the same application on the same ground, ie, to attend overseas events. The Applicant’s criminal case was adjourned to 13 February 2020 for plea.
The present application
9. Upon being refused permission to leave Hong Kong by the Magistrate, the Applicant sought a second bail review. By the time when the matter was heard before me, the Applicant’s proposed trip to Taiwan had already been overtaken by event. Therefore, Mr Martin Lee, SC[5], counsel for the Applicant, only relies on the proposed book launch and the proposed speech to the Oxford Union in the United Kingdom for the purpose of the second bail review.
10. As to the proposed book launch, Mr Lee submits that the Applicant would risk breaching his contractual obligations to the publisher if he were not allowed to go to the United Kingdom to attend the promotion. As to the proposed speech to the Oxford Union, Mr Lee submits that it has been the tradition of the event organizer that speakers should deliver their speeches in person.
11. This second bail review is opposed by the Respondent. Ms Christal Chan[6] submits that the present application is of the same nature as the one before Toh J which has already been refused and that there has been no change of circumstances. Alternatively, Ms Chan submits that the Applicant’s intended speech could be delivered via the Internet and that his desire to participate in the event does not outweigh the public interest of due administration of justice: see Secretary for Justice v Wong Chi Fung[7]. It is also submitted that the Applicant has failed to show the necessity for him to travel overseas for the proposed book promotion, as the agreement between the Applicant and the publisher are couched in flexible terms so that his presence in the United Kingdom for book promotion is not a must.
Legal issues
12. Mr Lee submits that the present application raises an issue of principle that requires clarification from the court, namely, whether an applicant can make a renewed bail application before a different judge (Judge B) relying on the same ground which has already been considered and rejected by another judge (Judge A) without a material change of circumstances. Mr Lee submits that there are no statutory provisions prohibiting multiple bail applications based on the same ground and that HKSAR v Siu Yat Leung[8] is wrongly decided insofar it says that there is a common law rule against this. Alternatively, Mr Lee submits that this second bail review is based on a ground different from that of the first one before Toh J, even though the present application is also about variation of the travel restriction.
13. Originally, this court had intended to deal with the present application on its own merits without delving into the law. However, as Mr Lee insists that a clarification of the effect of the relevant statutory provision and the judgment in HKSAR v Siu Yat Leung would be useful for future cases, in deference to the request of counsel I would venture to say a few words on the relevant statutory provisions and legal principles.
Relevant provisions
14. In common law, there is a presumption of innocence in favour of an accused person, no matter how serious the allegation against him/her is: Woolmington v DPP[9]. This common law presumption of innocence has now been entrenched Article 87 of the Basic Law which gives it a constitutional status:
“In criminal or civil proceedings in the Hong Kong Special Administrative Region, the principles previously applied in Hong Kong and the rights previously enjoyed by parties to proceedings shall be maintained.
Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.”
15. There is also Article 28 of the Basic Law which provides for the freedom of the person:
Article 28
The freedom of the person of Hong Kong residents shall be inviolable.
No Hong Kong resident shall be subjected to arbitrary or unlawful arrest, detention or imprisonment. Arbitrary or unlawful search of the body of any resident or deprivation or restriction of the freedom of the person shall be prohibited. Torture of any resident or arbitrary or unlawful deprivation of the life of any resident shall be prohibited.
16. Because of the aforesaid constitutional rights entrenched by the Basic Law, an accused must not be deprived of his liberty pending trial without good, valid and sufficient reasons and bail pending trial should be the normal rather than exception. In the same vein, Article 5(3) of the Hong Kong Bills, Cap 383, says:
“Liberty and security of person
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(3) Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgment.”
17. As regards specific statutory provisions on bail, they are contained in Part IA of the Criminal Procedure Ordinance (“CPO”), Cap 221, which was enacted in 1994[10] to implement the recommendation of the Law Reform Commission in its Report on “Bail in Criminal Proceedings”[11]. By virtue of s9D, CPO an accused is given a right to bail but it may be refused in the particular circumstances as set out in s9G, CPO. Section 9G(1) provides that the court need not admit an accused to bail if it appears that there are substantial grounds for believing that he will (a) fail to surrender to custody, or (b) commit an offence while on bail, or (c) interfere with a witness or pervert or obstruct the course of justice. As provided by subsection (2), the court in forming its opinion under subsection (1) may have regard to:
“(a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;
(b) the behaviour, demeanour and conduct of the accused person;
(c) the background, associations, employment, occupation, home environment, community ties and financial position of the accused person;
(d) the health, physical and mental condition and age of the accused person;
(e) the history of any previous admissions to bail of the accused person;
(f) the character, antecedents and previous...
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