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HCAL 473/2021
[2021] HKCFI 1397
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF FIRST INSTANCE
CONSTITUTIONAL AND ADMINISTRATIVE LAW LIST
NO 473 OF 2021
_________________
| BETWEEN |
| TONG YING KIT |
Applicant |
| and |
| SECRETARY FOR JUSTICE |
Putative Respondent |
_________________
| Before: |
Hon Alex Lee J in Court |
| Date of Hearing: |
10 May 2021 |
| Date of Judgment: |
20 May 2021 |
______________
JUDGMENT
______________
Introduction
1. This is about the rolled-up hearing of the Applicant’s leave application and, if leave is granted, the substantive judicial review. The decision being challenged (“Decision”) is that of the Putative Respondent (“SJ”) to issue a certificate (“Certificate”) pursuant to Article 46(1) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”) as regards his criminal case[1] which is to be tried in the Court of First Instance (“CFI”).
2. By way of background, the Applicant has been committed for trial to the CFI on two counts of offences under the NSL, namely “incitement to secession”[2] and “terrorist activities”[3]. After the indictment was preferred[4], in the exercise of the power conferred on her by NSL 46(1), on 5 February 2021 SJ issued the Certificate directing that the Applicant’s criminal case be tried without a jury. As a result, the criminal case is now listed to be tried by a panel of three CFI judges[5] sitting without a jury, commencing on 23 June 2021 with 15 days reserved.
3. Before the hearing, however, it came to the attention of the court that the prosecution has indicated an intention to add to the indictment a new charge of “causing grievous bodily harm by dangerous driving”[6], which is a non-NSL offence. Upon enquiry by the court, the parties agree that this development would not have an impact upon the present application. Therefore, the hearing is proceeded with without regard to that intended new charge.
The Certificate
4. For the sake of convenience, I set out the body of the Certificate as follows:
In the Chinese original:
本人現行使在《2020年全國性法律公布》(2020年第136號法律公告)附表中的《中華人民共和國香港特別行政區維護國家安全法》第四十六條第一款賦予的權力,對高等法院原訟法庭進行的就危害國家安全犯罪案件提起的上述刑事檢控程序,發出證書指示相關訴訟毋須在有陪審團的情況下進行審理。證書是經顧及並考慮所有相關的情況及資料,為有效防範、制止和懲治危害國家安全犯罪,基於以下理由而發出：
(一) 保障陪審員及其家人的人身安全;及/或
(二) 若審訊在有陪審團的情況下進行,有可能會妨礙司法公義妥爲執行的實際風險。
日期: 2021年2月5日
In the English translation:
In exercise of the power vested in me by Article 46(1) of the Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (L.N. 136 of 2020), in the above criminal proceedings in the Court of First Instance of the High Court concerning offences endangering national security, I hereby issue a certificate directing that the case shall be tried without a jury. For the effective prevention,suppression andpunishmentofoffencesendangeringnationalsecurity,the certificate is issued on the following ground(s) having taken into accountand considered all the relevant circumstances andinformation:
(1) Protection of personal safety of jurors and their family members;and/or
(2) If the trial is to be conducted with a jury, there is a real risk that the due administration of justice might beimpaired.
Dated this 5th day of February, 2021
[Original signed]
(Ms Teresa Cheng, SC)
Secretary for Justice
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Contention of the Parties
Applicant’s contention
5. In brief, the Applicant in his Form 86 challenges the Decision on the three conventional grounds: (i) procedural impropriety, in that the Applicant has not been given an opportunity to make representations and that SJ has failed to give any or any adequate reasons for the Decision; (ii) illegality, in that the Decision is not supported by any evidence or material which may trigger the use of the power under NSL 46; and (iii) irrationality, in that the Decision is so unreasonable that no reasonable decision-maker would have come to it. Alternatively, it fails to meet the well-known 4-step test laid down in Hysan Development Co Ltd v Town Planning Board[7].
SJ’s contention
6. In brief, SJ opposes the leave application on the basis that (i) the Decision is a prosecutorial one and therefore is free from any intervention including judicial encroachment: Article 63 of the Basic Law (“BL”); (ii) the application is a collateral attack on the criminal proceedings; (iii) the Decision is about a mere intermediate/ procedural step rather than a substantive determination of the criminal trial and as such, the challenge is premature; (iv) in any event, the Applicant’s grounds, short of any allegation of “bad faith”, are not reasonably arguable.
7. Before going to the details of the contentions of the parties, in order to focus on what this application is really about, the following need to be bear in mind:
(1) the Applicant is not contending that there is a general right to a jury trial in the criminal justice system in Hong Kong. That there is no such a general right in Hong Kong is the concurrent finding of various levels of courts involved in the Chiang Lily’s case[8].
(2) However, it is the premise of the Applicant’s challenge that an accused has a constitutional right to a trial by jury once SJ has preferred an indictment. Whether there is such a right, constitutional or otherwise, is a matter which this court needs to decide.
(3) The challenge has nothing to do with the fairness of the trial. The Applicant agrees that an accused may have a fair trial without a jury: see Twomey & Cameron v UK[9]; and Re Hutching’s Application for Judicial Review[10]. Therefore, the defendant’s absolute right to a fair trial guaranteed by BL 87 is not engaged.
(4) There is and can be no challenge to the constitutionality of NSL 46(1): HKSAR v Lai Chee Ying[11]. Therefore, there is also no dispute that SJ has the power to make the Decision.
(5) The present application is not about merits of the Decision either. It is trite that formulation of policies and assessment of information leading to the decision in question are primarily matters for the decision maker (which is SJ in this case) and the court should not usurp the latter’s function. The court’s role in judicial review is supervisory and it is only concerned with the lawfulness of the decision in question. Therefore, even if the decision is not one which the court might or would have come to, the court would not intervene by way of judicial review unless there are errors of law or procedural unfairness or irrationality in the decision: Television Broadcast Ltd v Communications Authority[12].
BL and NSL
8. As a matter of convenience, I list out the following articles of the BL and the NSL which are relevant to the present application:
BL 63
The Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.
BL 86
The principle of trial by jury previously practised in Hong Kong shall be maintained.
BL 87
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.
NSL 4
Human rights shall be respected and protected in safeguarding national security in the Hong Kong Special Administrative Region. The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.
NSL 5
The principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security. A person who commits an act which constitutes an offence under the law shall be convicted and punished in accordance with the law. No one shall be convicted and punished for an act which does not constitute an offence under thelaw.
A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected. No one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquittedin judicial proceedings.
NSL 41
This Law and the laws of the Hong Kong Special Administrative Region shall apply to procedural matters, including those related to criminal investigation, prosecution, trial, and execution of penalty, in respect of cases concerning offence endangering national security over which the Region exercises jurisdiction.
No prosecution shall be instituted in respect of an offence endangering national security without the written consent of the Secretary for Justice. This provision shall not prejudice the arrest and detention of a person who is suspected of having committed the offence or the application for bail by the person in accordance with the law.
Case concerning offence endangering national security within the jurisdiction of the Hong Kong Special Administrative Region shall be tried on indictment.
The trial shall be conducted in an open court. When circumstances arise such as the trial involving State secrets or public order, all or part of the trial shall be...
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