|
CACV 293/2021
[2021] HKCA 912
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CIVIL APPEAL NO. 293 OF 2021
(ON APPEAL FROM HCAL NO. 473 OF 2021)
________________________
| BETWEEN |
|
|
| TONG YING KIT |
Applicant |
| and |
| SECRETARY FOR JUSTICE |
Putative Respondent |
________________________
Before: Hon Poon CJHC, Yeung VP and Lam VP in Court
Date of Hearing: 15 June 2021
Date of Judgment: 22 June 2021
________________________
JUDGMENT
________________________
Hon Poon CJHC:
1. 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”) provides:
「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刑事檢控程序，律政司長可基於保護國家秘密、案件具有涉外因素或者保障陪審員及其家人的人身安全等理由，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。凡律政司長發出上述證書，高等法院原訟法庭應當在沒有陪審團的情況下進行審理，並由三名法官組成審判庭。」
Its English translation reads:
“In criminal proceedings in the Court of First Instance of the High Court concerning offences endangering national security, the Secretary for Justice may issue a certificate directing that the case shall be tried without a jury on the grounds of, among others, the protection of State secrets, involvement of foreign factors in the case, and the protection of personal safety of jurors and their family members. Where the Secretary for Justice has issued the certificate, the case shall be tried in the Court of First Instance without a jury by a panel of three judges.”
2. The core issue raised in this appeal is whether a decision by the Secretary for Justice to issue a certificate under NSL 46(1) is amenable to conventional judicial review challenge such as the principle of legality and procedural safeguards.
A. Proceedings below
A1. Prosecution case
3. The applicant is the defendant in HCCC 280/2020. He is facing a count of incitement to secession, contrary to NSL 20 and NSL 21; and another count of terrorist activities, contrary to NSL 24, and an alternative count of causing grievous bodily harm by dangerous driving, contrary to section 36A of the Road Traffic Ordinance[1]. The prosecution alleged that on 1 July 2020, after NSL was promulgated, a large number of protestors took part in riots in Wanchai and Causeway Bay. Police were deployed to maintain public order there. In the afternoon, the applicant rode his motorcycle at speed in Wanchai, flying a black flag emblazoned with words in white “光復香港時代革命” and “LIBERATE HONG KONG REVOLUTION OF OUR TIMES”. The public actively responded to his conduct. The police tried to stop him at several locations but failed. Eventually, the applicant rammed into the police officers at the checkline at the junction of O’Brien Road and Jaffe Road, after ignoring the police’s warning, and injured three police officers seriously. He himself fell off his motorcycle and fractured his ankle.
4. On 16 November 2020, the applicant was ordered by a magistrate to be committed to the Court of First Instance for trial. The indictment was preferred on 23 November 2020.
A2. Issue of the certificate under NSL 46(1)
5. On 5 February 2021, the Secretary for Justice pursuant to NSL 46(1) issued a certificate directing that the proceedings in HCCC 280/2020 be tried in the Court of First Instance without a jury (“the Certificate”). The Certificate is written in Chinese and it reads:
“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
Its English translation is:
“ 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” |
As a result, the case is listed for trial in the Court of First Instance before a panel of three judges. It will commence on 23 June 2021 with 15 days reserved.
A3. The Judge’s judgment
6. On 7 April 2021, the applicant applied before Alex Lee J (“the Judge”) for leave to judicial review of the decision to issue the Certificate on the ground that it engaged the principle of legality and procedural safeguards which the Secretary for Justice had failed to observe. After a rolled-up hearing on 10 May 2021, the Judge handed down his judgment on 20 May 2021,[2] refusing to grant leave to the applicant to apply for judicial review.
7. The Judge rejected the applicant’s primary contention that, since an indictment has been preferred against him, he has a constitutional right to a jury trial in the Court of First Instance; and that this right is protected by general principles of legality and other ordinary procedural safeguards. While recognising that the practice in Hong Kong has been for jury trials to be held in criminal proceedings in the Court of First Instance, the Judge held that it does not mean that the accused has a constitutional right to jury trial. Even if there had been any previous right to a jury trial, such right would have been abrogated by NSL 46(1) and NSL 62 in respect of trial for national security offences[3]. After the enactment of NSL, there are two modes of trial in the Court of First Instance for these offences. The traditional mode is trial by jury, and the new mode is trial by a panel of three judges without jury. This new mode is engaged when a certificate is issued by the Secretary for Justice under NSL 46(1).
8. The Judge observed that the direction in the NSL 46(1) certificate is mandatory, and that the NSL does not provide that the Secretary has a duty to hear or notify an accused before she issues the certificate. The Judge further observed that NSL 46(1) sets out non-exhaustively the grounds for issuing a certificate. These grounds involved matters which the Secretary would reasonably be expected not to engage in discussion with an accused before trial, namely, protection of state secrets, involvement of foreign factors and jury protection.
9. The Judge further held that issuing the certificate directing a trial without jury is a prosecutorial decision, which is to be free from any interference under the Basic Law (BL 63). Thus, the certificate cannot be reviewed by the court on ordinary judicial review grounds. It is only reviewable on the limited grounds such as (i) acting in obedience to political instruction, (ii) bad faith, and (iii) rigid fettering of prosecutorial discretion: see Re Leung Lai Fun [2018] 1 HKLRD 523.
10. Referring to Re Hutchings’ Application for Judicial Review [2020] NI 801, the Judge held that there was no requirement to hear from or to inform the applicant before issuing the certificate. He therefore rejected the applicant’s challenge on the ground of procedural impropriety or unfairness based on the lack of notice and opportunity to make representation.
11. Following his ruling that issuing the Certificate is a prosecutorial decision, the Judge held that the mere absence of detailed reasons is not sufficient to meet the very high evidential threshold for reviewing such a decision. Absent any allegation of bad faith or dishonesty, there was no basis for the court to interfere. The challenge on the ground of illegality, with the applicant contending that the lack of reasons meant that there was no rational basis for the Certificate (so that the Secretary must have misinterpreted or misapplied the law), was rejected.
12. As for the challenge based on Wednesbury unreasonableness, the Judge held that there was nothing inherently unreasonable in directing a trial by a panel of three judges without jury, when, on the face of the Certificate, there is a perceived risk in relation to the safety of jurors or their family, or that due administration of justice might be impaired.
13. Finally, the Judge held that, since the applicant has no right to a trial by jury, and his right to a fair trial is not engaged (as a fair trial can be conducted without a jury), the Certificate does not constitute a restriction of any of his rights. Therefore, the proportionality test as set out in Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372 is not engaged.
B. Appeal
B1. The applicant’s grounds of appeal and submissions
14. In the notice of appeal, Mr Philip Dykes SC for the applicant[4] put forward numerous grounds of appeal, which can be categorized as two main complaints:
(1) the Judge erred in ruling that there was no constitutional right to a jury trial in the Court of First Instance; and
(2) he erred in ruling that issuing a NSL 46(1) certificate was a prosecutorial decision protected under BL 63 from interference.
15. On constitutional right to jury trial, Mr Dykes submitted that, before the enactment of NSL, an accused was entitled to a verdict from a jury if he were to be tried...
| 
