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HCAL 1601/2020
[2020] HKCFI 2133
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST NO 1601 OF 2020
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| BETWEEN |
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TONG YING KIT (唐英傑) |
Applicant |
and |
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HKSAR (香港特別行政區) |
Respondent |
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| Before: |
Hon Chow and Alex Lee JJ in Court |
| Date of Hearing: |
20 August 2020 |
| Date of Judgment: |
21 August 2020 |
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J U D G M E N T
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This is the judgment of the Court.
SUMMARY
1. By an application for a writ of habeas corpus made on 3 August 2020, the Applicant seeks to challenge his current detention since 6 July 2020 pursuant to an order of Mr So Wai-tak, the Chief Magistrate sitting at the West Kowloon Magistrates’ Court, remanding him in custody pending the next hearing scheduled for 6 October 2020 in Case No WKCC 2217/2020 (“the Order”).
2. The principal point raised by the Applicant is that Article 42(2) of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“the National Security Law”) is an unconstitutional “no bail” provision, and it is argued that the Applicant is therefore justified to seek his release by making a habeas corpus application instead of an ordinary application for review of refusal of bail under s 9J of the Criminal Procedure Ordinance, Cap 221 (“the CPO”). The Applicant also challenges the constitutionality of a few other articles of the National Security Law, in particular Articles 20, 21, 24 and 44 thereof. In what follows, unless the context indicates otherwise, references to “Article” shall be to the National Security Law.
3. In our view:
(1) The Applicant has adopted a wrong procedure to challenge the Order. The Applicant ought properly to have applied for a review of refusal of bail under s 9J of the CPO, instead of making a habeas corpus application to seek his release from detention.
(2) In an application for a writ of habeas corpus, the sole consideration of the court is whether the Chief Magistrate had lawful authority to make the Order remanding the Applicant in custody pending the next court hearing, and not whether the Chief Magistrate’s decision is correct, the latter being a matter to be determined in a bail review.
(3) The Applicant’s detention is pursuant to a court order made by the Chief Magistrate in the discharge of his ordinary judicial powers, and cannot be said to be without lawful authority.
(4) Article 42(2) is not a “no bail” provision. Upon the true construction of Article 42(2) and its proper application, in the vast majority of cases, the same result should be reached regardless of whether a judge applies the ordinary criterion under s 9G(1)(b) of the CPO (ie, a real or substantial risk that an accused would “commit an offence while on bail”) alone, or in conjunction with Article 42(2), when determining whether to grant or refuse bail.
(5) The effect of Article 44 is simply that a number of judges at different levels of the courts in Hong Kong are designated by the Chief Executive to handle cases concerning offences endangering national security. The actual assignment of a judge to hear any particular case remains the sole responsibility of the Judiciary. Judges are duty-bound by the Judicial Oath to discharge their functions strictly in accordance with the law, and to be completely free of any interference from, or influence by, the Government.
(6) The prescription of ranges of sentences by Articles 20, 21 and 24 for persons found guilty of having committed offences under those articles, leaving it open to the judge to determine the appropriate sentence based on the facts and circumstances of any given case, is not objectionable in principle.
(7) The National Security Law is fully accessible to the Applicant and cannot be said to unreasonably restrict his right to choice of counsel, notwithstanding the absence of an authentic English text of the National Security Law.
BACKGROUND FACTS
4. For the purpose of disposing of the present application, the following brief summary of facts should suffice.
5. On 1 July 2020, after the promulgation of the National Security Law, a large number of people went to the Wan Chai and Causeway Bay areas to protest against it. One of them was the Applicant.
6. According to the prosecution:
(1) In the afternoon of 1 July 2020, at around 15:35 hours, the Applicant was seen riding his high-powered motorcycle in the Wan Chai area at speed. At all material times, he was carrying a backpack, from which a black flag containing a slogan in white “光復香港 時代革命” and “LIBERATE HONG KONG REVOLUTION OF OUR TIMES” (“the Slogan”) was hoisted upwards and displayed to the public as he drove his motorcycle. The public, or some members of the public, responded by cheering loudly to support his conduct.
(2) Some police officers who had formed a checkline at the junction of Hennessy Road and Luard Road (“Checkline-1”) tried to stop the Applicant, but he continued to ride his motorcycle at speed towards them. The police officers managed to step aside and avoid being crashed into by the motorcycle.
(3) The Applicant escaped from the scene and rode ahead along Hennessy Road. He turned left from Hennessy Road into Fleming Road, then left again into Lockhart Road and eventually turned right into Luard Road. There, he encountered another police checkline (“Checkline-2”), which included more than 10 police officers at the junction of Luard Road and Jaffe Road. Again, the police officers tried to stop the Applicant but to no avail. He turned right into Jaffe Road and continued to drive at speed.
(4) At the junction of O’Brien Road and Jaffe Road, another group of police officers had formed a checkline (“Checkline-3”) and tried to stop the Applicant. He ignored the police’s warning and rammed his motorcycle into the group of police officers, thereby seriously injuring three of them:
(a) one suffered spine collapse and lower limbs abrasion;
(b) the second suffered right thumb subluxation and ribs fracture; and
(c) the third suffered tenderness on right chest wall, and tenderness and abrasion on right thumb.
(5) The Applicant himself fell off his motorcycle and fractured his ankle.
(6) At around 15:40 hours, the Applicant was arrested for the offence of “furious driving” and other offences under the National Security Law.
7. It is the prosecution’s case that:
(1) the Applicant committed an offence contrary to Articles 20 and 21 in that, by parading the flag displaying the Slogan in the circumstances as described above, he incited other persons to organize, 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 (“Offence-1”); and
(2) the Applicant further committed an offence contrary to Article 24 in that, by running his motorcycle into the groups of police officers at the Checkline 1 and Checkline 3 thereby causing serious injuries to three of them, he, with a view to coercing the Central Peoples’ Government or the Government of the HKSAR, or intimidating the public in order to pursue political agenda, committed terrorist activities causing or intending to cause grave harm to society, namely, serious violence against persons, or other dangerous activities which seriously jeopardize public safety or security (“Offence-2”).
8. On 3 July 2020, the Applicant was charged with Offence-1 and Offence-2.
9. On 6 July 2020, the Applicant was brought before the Chief Magistrate. His application for bail was refused by the Chief Magistrate, who made an order remanding him in custody until the next hearing scheduled for 6 October 2020. It would appear from the Chief Magistrate’s “Extract of Record of Bail Proceedings” that he refused to grant the Applicant bail because he considered that there were substantial grounds for believing that the Applicant would “fail to surrender to custody as the court may appoint” and “commit an offence while on bail”. In Part IV of that record under the heading “Reasons”, the Chief Magistrate put a tick against:
(1) item (a) - “Nature and seriousness of the alleged offence including the likely disposal in the event of conviction”; and
(2) item (j) - “Others”, and wrote the following “Article 42 of the [National] Security Law”.
10. The Applicant now seeks to challenge his continued detention by applying for a writ of habeas corpus. Alternatively, he applies for bail under s 9J of the CPO, which will be separately dealt with after we have disposed of the habeas corpus application.
THE GROUNDS OF APPLICATION
11. In his “Application for Writ of Habeas Corpus” dated 3 August 2020, the Applicant states that he makes the application on the grounds set out in his affirmation filed on 3 August 2020. In that affirmation, the Applicant states that he has been legally advised that his current detention under the Order is unlawful, but does not distinctly set the grounds of the application, although it would appear from the contents of that affirmation that the following grounds, or complaints, are relied upon:
(1) Article 42 incorporates an assumption of guilt and violates the presumption of innocence and the presumption of bail in Part 1A of the CPO;
(2) Article 42, being “mandatory” in nature, wrongly restricts or interferes with the exercise of the independent judicial power of the HKSAR under the Basic Law to the extent that it effectively deprives a judge or magistrate from...
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