HKSAR v. MO MAN CHING CLAUDIA (毛孟靜)

HCCP 134/2021 [2021] HKCFI 1435 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF FIRST INSTANCE MISCELLANEOUS PROCEEDINGS (CRIMINAL) NO 134 OF 2021 __________________________ BETWEEN HKSAR Respondent and MO MAN CHING CLAUDIA (毛孟靜) Applicant __________________________ Before: Hon Toh J in Chambers (Open to Public) Date of Hearing: 14 April 2021 Date of Decision: 14 April 2021 Date of Reasons for Decision: 28 May 2021 __________________________________ REASONS FOR DECISION __________________________________ This is an application for bail in relation to the Chief Magistrate’s refusal of bail in relation to a charge “conspiracy to commit subversion” contrary to Article 22(3) of the National Security Law (“NSL”) and sections 159A and 159C of the Crimes Ordinance, Cap 200. 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” 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. 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. The applicable principle as reiterated by the CFA judgment in HKSAR v Lai Chee Ying 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.” 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”. DISCUSSION The Applicant, with 46 others, were charged with one count of “Conspiracy to commit subversion”, contrary to Article 22(3) of the NSL, and sections 159A and 159C of the Crimes Ordinance, Cap 200. The learned Chief Magistrate, on 4 March 2021, had refused the Applicant’s bail application and on 14 April 2021, the Applicant applied for bail before this Court. After consideration of all the materials before the Court and counsel’s submissions, both oral and written, the Applicant’s bail application was refused. Here below are the reasons for the ruling. Mr Pun SC, on behalf of the Applicant submitted that the Applicant not only had a clear record, she also had good character. In fact, she was so trusted by the Government that she was asked to serve in the temporary Legislative Council (“LegCo”) in August 2020 when the LegCo election was postponed due to Covid-19. The Applicant resigned in November 2020 and she had never been disqualified in any LegCo election. Mr Pun SC also stressed the fact that during the Applicant’s tenure in LegCo, she had, on occasion, voted in favour of the Government. Mr Pun SC stressed that if granted bail, the Applicant would retire from politics and she will not act or do any acts against national security. Ms Yang in her submission stated that, although Mr Pun SC said that the Applicant did not advocate for the Primaries, she had been consulted and had given advice in the extensive communications on WhatsApp between herself and the 1st Defendant in the case. Ms Yang pointed out that on 29 June 2020, when the Applicant attended the election forum for the Kowloon West constituency, she had said: “誒我自己呢，就通常都係誒最專注喺國際線嘅誒新聞範疇嗰度，嗄，接受訪問嚟講嘅。…” The Applicant ran for the Primaries on 11 and 12 July 2020, and subsequently won. Ms Yang submitted that in furtherance of the scheme, the Applicant submitted her LegCo nomination form on 22 July 2020. Also, stated in Ms Yang’s written submission, the police had seized the Applicant’s mobile telephone when she was arrested on 6 January 2021. There were extensive WhatsApp messages between herself and the 1st Defendant in relation to the “35+ agreement”, in which the 1st Defendant consulted her and sent her the draft and final version for her perusal. After the enactment of the NSL, there were extensive communications between the Applicant and the 1st Defendant, in relation to the new legislation. In conclusion, the Applicant had asked the 1st Defendant to be careful. So Ms Yang submitted it is clear that the Applicant played a critical role as advisor or consultant to the 1st Defendant in the conspiracy. Ms Yang further pointed out in her written submission that, the Applicant not only was fully participating in the Primaries, but had also had a hand in spreading false rumour about the alleged injuries of people in the Prince Edward MTR station on 31 August 2019. As Ms Yang also submitted that, on 1 January 2020, when the Applicant was interviewed on Sky News, which is a British media outlet, she had irresponsibly and without factual basis, accused the police of sending two undercover police officers disguised as rioters to vandalise shops in Wan Chai with the intention to use the incident to halt the public protests on 1 January 2020: “… Now they use apparently this particular incident to call for a complete halt to the protest march today and they started using tear gas and pepper spray and what are the cannon trucks and everything, and as we speak they’re rounding up people, old and young, men and women, just to terrorize Hong Kong. This is nothing new but for god’s sake this is…” Further, Ms Yang submitted that on 17 October 2019, when being interviewed on the news channel of Bloomberg, the Applicant claimed that: “The American House’s passage of the Hong Kong Human Right and Democracy Act a day ago would serve as a psychological booster for the protesters in Hong Kong… … … So as much help as we can get from anyone including the Americans, including the Washington government. It would be more than welcomed because Hong Kong people are feeling fairly desperate.” Furthermore, in Video F, where the Applicant was interviewed again on Bloomberg on 22 May 2020, she reiterated her view, with emotive language that Hong Kong is: “a lost city, it’s no longer safe and it’s all being controlled and whatever is going to happen to our, supposed attack of an international financial hub, this marks the end of Hong Kong.” Also, in her WhatsApp conversation with a reporter from Wall Street Journal on 1 October 2020, she mentioned: “The detention and treatment of the 12 Hong Kong protesters serve as the ultimate warning and threat to Hongkongers about what one can face if you’re caught. The new security law and the spate of arrests have worked as a scare tactic, probably fairly successfully – at sending a persistent political chill around the city.” Ms Yang submitted that not only was the Applicant misleading the international press, because the 12 Hong Kong persons who were arrested and detained in the Mainland were actually absconders from criminal offences in Hong Kong. Therefore, they were arrested while in the course of absconding. And her accusations of desperation and loss of human rights and freedom were also repeated in her WhatsApp conversation with a reporter from the BBC on 1 October 2020. Also, on 11 December 2020 in her WhatsApp conversation with a reporter from the New York Times. As late as 17 November 2020, the Applicant was still voicing her view that the legislation and disqualification of legislators was the “final nail in the coffin of one country, two systems”. Further along in that same interview, she expressed: “I definitely feel that Hong Kong is experiencing Cultural Revolution scenarios, Hong Kong-style. The local police actually encourage you to report – to snitch – on your friends, or your neighbors. …” Therefore, Ms Yang pointed out that the Applicant had remained vocal and highly influential in both local and international platforms, and had always maintained close connection with the foreign diplomats of various countries. Therefore, Ms Yang submitted that there are insufficient grounds for believing that the Applicant will not continue to commit acts endangering national security and therefore bail should be refused. Mr Pun SC submitted that the Applicant, in relation to the Prince Edward MTR station incident, was in fact reflecting complaints from some of her fellow citizens and raising questions to the authorities concerned. She was fulfilling her duties as a journalist. As far as the undercover police officers incident, where she referred to them as vandalising shops, she had obtained that information from some news outlets and some witnesses. Therefore, Mr Pun SC submitted that, as a journalist, she was entitled to make the comment she did. I have always had the upmost respect for journalists, particularly those reporting the news impartially and reflecting the situation accurately and without bias. Having heard and seen what the Applicant had said, I am of the view that, after performing my “predictive and evaluative” exercise, on the materials before me, and counsel’s submissions, both written and oral, and the bail conditions offered, I consider that there are insufficient grounds for believing that the Applicant will not continue to commit acts endangering national security if bail is granted. Therefore, her bail application was refused. (Esther Toh) Judge of the Court of First Instance High Court Ms Maggie Yang, DPP (Ag.), Mr Andy Lo, SPP and Ms Cherry Chong, PP of the Department of Justice, for the Respondent Mr Hectar Pun SC leading Mr Chris Ng and Ms Ferrida Chan, instructed by Adrian Lau & Yim Lawyers, for the Applicant