Case Detail

HCCP 454/2021

[2022] HKCFI 1173

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 454 OF 2021

__________________________

BETWEEN
	HKSAR	Respondent
and
	FAN KWOK WAI GARY(范國威)	Applicant

__________________________

Before: Hon Toh J in Chambers (Open to Public)

Dates of Hearing: 14 and 19 April 2022

Date of Decision: 19 April 2022

Date of Reasons for Decision: 26 April 2022

____________________________

REASONS FOR DECISION

____________________________

1. This is the Applicant’s second application for bail before this Court. His first application for bail on 7 September 2021 was refused as the Court was of the opinion that he would continue to commit acts endangering national security, therefore failed to overcome the first threshold of the test laid down by the CFA in the case of HKSAR v Lai Chee Ying[1].

Applicant’s submission

2. Ms Ng on behalf of the Applicant, submitted that there had been a material change of circumstances since the refusal of bail on 7 September 2021, in that:

(1)  The health conditions of the Applicant’s parents and sister have deteriorated;
(2)  the procedural development in WKCC 813/2021 suggested that there will be a long delay before trial, and Ms Ng submitted that the earliest realistic trial date will be somewhere in mid-2023;
(3)  the Applicant has already severed all political affiliations and resigned from all public offices. So objectively his political life has ended.
Therefore, his main priority now is his family, and therefore, the possibility he will continue to commit acts endangering national security is virtually non-existent.

Respondent’s submission

3. Ms Fu for the Respondent, submitted that the purported change of circumstances, has no bearing on and would not undermine the soundness of the consideration of the first threshold as set down by the CFA in HKSAR v Lai Chee Ying, supra.

4. Ms Fu submitted that on the first occasion when the Applicant applied for bail, the Court had already considered the health conditions of the family, although it is not disputed that their health situation had deteriorated in the months since September 2021.

5. She also submitted that the Prosecution had been ready for committal since September 2021. However, the matter was adjourned pending translation of all the documents and certified translations. By 10 January 2022, all relevant translations had been served on the Defence, and the certified translations were served on 1 March 2022.

6. As can be seen from the case chronology submitted by the Respondent, the learned Chief Magistrate did explore the possibility on the 4 March 2022 to seta timetable for the Defendants to indicate their plea before the 5^th return day which would be 28 April 2022. But this was opposed by the Defence, one of whom was the Applicant. I am informed that as at the present moment, 11 Defendants had indicated their intention to plead guilty.

7. As far as this Applicant is concerned, Ms Fu pointed out that the Applicant still maintains his Patreon site actively and in spite of what Ms Ng maintained that it was only to put online the artistic works of the Applicant, Ms Fu pointed out that on 17 December 2021, there was a message put there by the Applicant which reads:

“捷克、南韓、台灣，走過獨裁威權時代，過渡至民主自由社會，要經過數十年的漫長歲月，希望香港不需要經歷這麼久的艱苦試練，才能到達花開的彼岸，現在黑暗隧道看不見盡頭，牆外朋友的問候鼓勵，給我堅持下去的勇氣…”

8. Ms Fu submitted that the Applicant is still resolute and determined in continue to commit acts endangering national security if bail is granted.

Discussion

9. While I agree that the deteriorating familial circumstances of the Applicant had already been dealt with in the previous application, and does not of itself consist of a change in circumstances. I am however, concerned about the long delay in the proceeding being brought to trial. As was laid down in NSL 42(1), the article stipulates that:

“the law enforcement and judicial authorities of the Region shall ensure that cases concerning offence endangering national security are handled in a fair and timely manner”

10. The CFA observed in paragraph 34 of HKSAR v NG Hau Yi Sidney[2]:

“34. With the full cooperation of the parties, magistrates and judges should proactively seek ways to bring NSL-related matters to trial expeditiously, consistently of course with the interests of justice. There should be proactive case management and a monitoring of progress by the court rather than leaving all initiatives to the parties while the person remanded remains in pre-trial custody for lengthy periods. The court should set and enforce strict timetables and should critically consider whether any prescribed procedural steps, properly construed, can be eliminated, re-sequenced, modified, split up or made to run concurrently to avoid delay and wasted effort, consistent always with a fair trial.”

11. The Defendants in this case, along with the Applicant, had been in pre-trial custody for a year.

12. It is time for the lower Courts to consider case management exercise to impose milestone dates, that is, dates which are set in concrete unless there are exceptional circumstances to move it, e.g., the Committal Date should be set and unless exceptional circumstances pertains, that date should not be moved, and parties will have to work around that date, e.g., in the case of Defendants who have the intention to plead, the Summary of Facts have already been prepared by the Prosecution but the Defence had not been able to agree them so far.

13. If that is the case, then the Court will set a deadline for the Summary of Facts to be agreed, if it cannot be agreed in good time prior to committal, then the Defendants involved will be committed and at such time when the sentencing occurs before the sentencing Judge, then the matter as to whether the mitigation of an early plea should be given, will then be argued before the sentencing Judge.

14. There should be no reason to hold up the rest of the Defendants in their progress to a speedy trial.

15. It has also been mentioned, in passing before me, that there appears to be some Defendants who have indicated they may want a preliminary inquiry before committal. If that be the case, then it is for the learned Chief Magistrate dealing with the case management to impose a deadline for those Defendants to decide whether they need a preliminary inquiry, so as not to affect the Committal Date.

16. If the Court, by the deadline had not received confirmation, that any of the Defendants elect for a preliminary inquiry, then the matter should go ahead to committal. If before the deadline, the indication is forthcoming, then it is for the learned Chief Magistrate to set a date down for the preliminary inquiry which, as far as possible, would not affect the milestone Committal Date.

17. In a case of this size where there are so many Defendants, of course, the learned Chief Magistrate has to deal with many issues. It will all lead to confusion unless the Court is proactive insisting on milestone dates and deadlines to be observed by the parties. Of course, these are merely observations and it is for the learned Chief Magistrate to consider the best way forward.

18. I have sympathy for Ms Ng’s submission about the long wait for committal and possibly trial, which as she said, militates against fairness to her client.

19. As I had indicated, at this time, I am still of the view that the Applicant has not managed to overcome the first threshold.

	(Esther Toh)
	Judge of the Court of First Instance
	High Court

Ms Betty Fu, ADPP(Ag.) and Ms Cherry Chong, SPP(Ag.) of the Department of Justice, for the Respondent

Ms Margaret Ng and Mr Jason Ko, instructed by Bond Ng Solicitors, for the Applicant

[1] FACC No.1 of 2021 ([2021] HKCFA 3), (2021) 24 HKCFAR 67

[2] FAMC 32/2021, [2021] HKCFA 42

HCCP 454/2021

[2021] HKCFI 3109

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 454 OF 2021

__________________________

BETWEEN
	HKSAR	Respondent
and
	FAN KWOK WAI GARY(范國威)	Applicant

__________________________

Before:

Hon Toh J in Chambers (Open to Public)

Date of Hearing:	7 September 2021
Date of Decision:	7 September 2021
Date of Reasons for Decision:	2 November 2021

____________________________

REASONS FOR DECISION

____________________________

1. This is an application for bail in relation to the Chief Magistrate’s refusal of bail in relation to a charge of “Conspiracy to commit subversion” contrary to Article 22(3) of the National Security Law[1] (“NSL”) and sections 159A and 159C of the Crimes Ordinance, Cap 200.

2. In brief, the assertion of the Respondent is that this was a massive and well-organised scheme by the Applicant and 46 others to achieve a common criminal purpose to undermine the “proper functioning of the Legislative Council so as to paralyse the operations of the HKSAR government, eventually compelling the Chief Executive of HKSAR to resign”. The Respondent further submitted that despite the public statement of the Government that the “organization, planning or participating in the ‘35+’ Primaries”[2] and the statement on the 14 July 2020 by the Liaison Office of the Central People’s Government in HKSAR that the Primaries are illegal as having fallen foul of the NSL, the Applicant and others still carried on with their scheme.

3. It is submitted by the Respondent that had the Election not been postponed due to public health concerns, the conspiracy would have been carried out to fruition. If granted bail it is of concern that sufficient grounds exist for not believing that the Applicant will not continue to commit acts endangering national security.[3]

4. The applicable principle as reiterated by the CFA judgment in HKSAR v Lai Chee Ying[4] at paragraph 70(b) was:

“NSL 42(2) creates a specific exception to the HKSAR rules and principles governing the grant and refusal of bail, and imports a stringent threshold requirement for bail applications.”

5. The CFA judgment also elucidated that in applying NSL 42(2), the judge must first decide if there are sufficient grounds for believing that the suspect or defendant will not continue to commit acts endangering national security (“the prohibited acts”) and in doing so the “judge should consider everything that appears to the court to be relevant to making that decision including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial”.[5]

Applicant’s submission

6. The Applicant had applied for bail twice before the Chief Magistrate and had been refused bail. He had, therefore applied to this court for bail.

7. Mr Kwan submitted, inter alia, that the Applicant aged 54, would like bail in order to take care of his parents, as his father suffered from severe dementia and his mother who is 80 years old, is a sufferer from high blood pressure and diabetes.

8. Mr Kwan also pointed out that the elder sister of the Applicant was diagnosed with lung cancer not too long ago, and that the Applicant’s wife is pre-occupied with taking care of her own parents. Therefore, the Applicant is keen to be granted bail in order to look after his family.

9. Mr Kwan also submitted that the Applicant was a local politician who advocated non-violence, and he had never advocated for mutual destruction. There is no evidence to show that he had any international connection. The stance which the prosecution ascribed to him was only election rhetoric. Although he did say “光復香港”, he did not mean it as advocating Hong Kong independence.

10. So Mr Kwan submitted that there would be no impediment to him being able to overcome the first threshold as laid down by the CFA judgment in HKSAR v Lai Chee Ying.

11. As for the second threshold, Mr Kwan stressed that the Applicant had a long record of service to Hong Kong, and all his connections are in Hong Kong.

Respondent’s Submission

12. Mr Lo in his extensive submission, referred to videos leading up to the Primaries, where the Applicant was seen advocating in a determined manner, for the government to accede to the five demands. He repeated those demands even after the Primaries.

13. Mr Lo also pointed to the Applicant’s internet “Patreon” site, where membership was paid for in U.S. dollars. Even as late as 16 October 2020, he can be seen advocating that all parties should join together and act together in opposing the government.[6]

Conclusion

14. As Anthea Pang J (as she then was) said in HKSAR v Lai Chee Ying[7] that the court, on a bail application in NSL cases, has to do “a predictive and evaluative exercise” based on the various matters that had been brought to the count’s attention. Some of these matters may not be admissible in a court of trial, and therefore, I do not mention them here in this written ruling. However, I have to consider them in assessing whether the Applicant will continue to commit acts endangering national security if bail is granted.

15. As Anthea Pang J (as she then was) had also said “a determined and resolute person” may be more likely to transgress than one who is not. Having watched the videos and listened to what the Applicant had said, I am left with the conclusion that if granted bail, the Applicant will continue to commit acts endangering national security. So he had failed to pass the first threshold.

16. Therefore, the application was refused.

	(Esther Toh)
	Judge of the Court of First Instance
	High Court

Mr Andy Lo, SPP, Karen Ng, SPP(Ag.) and Ms Cherry Chong, SPP(Ag.) of the Department of Justice, for the Respondent

Mr Billy Kwan, instructed by Bond Ng Solicitors, for the Applicant

[1] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, applied to the HKSAR on 30 June 2020.

[2] The “Primaries” might have subject to investigation, fallen foul of Articles 20, 22 and 29 of the NSL.

[3] See Article 42(2) of the NSL.

[4] FACC No.1 of 2021 ([2021] HKCFA 3)

[5] See also HCCP 738/2020 ([2021] HKCFI 448)

[6] See Video G.

[7] HCCP 738/2020 ([2021] HKCFI 448)

HKSAR v. FAN KWOK WAI GARY

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