HKSAR v Tang Ngok Kwan (2025) 28 HKCFAR 29, [2025] HKCFA 3 (Robert Pang SC, Albert NB Wong, Esmond Wong)
Robert Pang SC, Albert NB Wong, and Esmond Wong represented the 1st and 2nd appellants in FACC 10/2024 in HKSAR v Tang Ngok Kwan (2025) 28 HKCFAR 29, [2025] HKCFA 3.
Ds, who were office-bearers of an organisation called the Hong Kong Alliance in Support of Patriotic Democratic Movements of China (the HKA), were convicted after trial of failing to comply with notices served on them by the Commissioner of Police (the Notices), contrary to Sch.5 s.3(3)(b) of the Implementation Rules (the IR) made under art.43 of the National Security Law (the NSL). The Notices, issued pursuant to Sch.5 s.3(1) of the IR, were served on the basis that the Commissioner reasonably believed that the HKA was a foreign agent as specified in Sch.5 s.1, and required Ds to provide information and documents, some of which dated back to the formation of the HKA in 1989. On receipt of the Notices, Ds had declined to comply with them, stating in an open letter that they were not foreign agents of any organisation; that the legality of the Notices would be challenged; and that they were invoking rights against self-incrimination and to a fair trial, freedom of association and protection of privacy. At trial, the Magistrate held that while Ds were entitled to challenge the legality of the Notices by way of a defence, under Sch.5 s.3(1) of the IR the prosecution was only required to prove that the Commissioner reasonably believed the HKA to be a foreign agent. The Magistrate also allowed, on the grounds of public interest immunity (PII), redaction of large portions of an investigation report and a recommendation to the Commissioner that Ds be served with the Notices. Ds’ appeal to the Court of First Instance was dismissed, with the Judge agreeing with the Magistrate that proof that the HKA was in fact a foreign agent was unnecessary and the PII redactions were justified. However, the Judge went further in holding that Ds were not entitled to challenge the legality of the Notices as they were the same persons identified in and served with the Notices, such that this amounted to an impermissible collateral attack and the challenge had to be by way of judicial review.
At issue on Ds’ appeal to the Court of Final Appeal were three questions of law, namely, whether: (i) the offence required proof that the organisation was in fact a foreign agent, as opposed to an organisation which the Commissioner had reasonable grounds to believe was such a “foreign agent” (Question 1); (ii) a challenge by way of defence to the validity of the Notices and their service on Ds were excluded by the “same person” test referred to in HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71 (Question 2); and (iii) the Notice could validly require the production of information which arose before the promulgation of the NSL on 30 June 2020 (Question 3). Ds also appealed on the substantial and grave injustice basis, arguing that the redactions in the investigation report and recommendation were erroneous and/or resulted in an unfair trial.
Held, unanimously allowing the appeals and quashing Ds’ convictions, that:
Question 1: whether the Sch.5 s.3(3) offence required proof that the relevant organisation was in fact a foreign agent
(1) It was a necessary element of the Sch.5 s.3(3) offence to prove that the HKA was in fact a foreign agent as defined in Sch.5 s.1 and that Ds were the office-bearers or managers of such an agent. This was clear from a textual interpretation of the relevant provisions – they all referred to the person or organisation served as a foreign agent, as opposed to a person or organisation reasonably believed to be a foreign agent. A purposive construction comparing the provisions of Sch.5 and Sch.7, which provided alternative routes for obtaining information in aid of preventing and investigating offences endangering national security, supported this view. Schedule 5 catered for cases where the Commissioner was able to prove that the target was in fact a foreign or Taiwan agent, while Sch.7 dealt with persons who were not of any such known status but were reasonably believed to have pertinent information. The Courts below had therefore erred in holding that it was sufficient merely for the Commissioner to assert that he had reasonable grounds to believe that the HKA was a foreign agent. (See paras.19-38, 102(a).)
Question 2: whether a challenge to the validity of the Notices by way of defence was excluded by the ” same person ” test
(2) There was a strong presumption in favour of allowing a defendant to challenge in criminal proceedings the validity of a relevant administrative order or decision which was an essential element of the offence. The “same person” exception only arose where a defendant was the same person who had been made subject to the relevant order or decision and it was compellingly clear that the legislative intention required departure from the strong presumption (for example, where the statute authorising the administrative order or decision itself provided a mechanism of appeal or review for persons aggrieved). Here, the IR did not provide any independent procedure for challenging the validity of the Notices. Therefore, there was no basis for departing from the strong presumption in favour of permitting collateral challenges. The Judge had erred in holding that Ds were excluded from challenging the validity of the Notices by the purported application of the “same person” test in HKSAR v Chow Hang Tung (HKSAR v Chow Hang Tung (2024) 27 HKCFAR 71 applied). (See paras.39-61, 102(b)).
(3) In view of the conclusions on Questions 1 and 2 and the prosecution’s reliance on the “reasonable grounds to believe” test, the appeals must be allowed. (See para.102(c).)
Question 3: whether the Notices could validly require the production of information which came into existence before the promulgation of the NSL
(4) Given the invalidity of the service of the Notices, it was unnecessary to consider Question 3. Nonetheless, dealing briefly with the issue, the proper test for the scope of information which could be sought was provided under Sch.5 s.3(1) – ie where the Commissioner “reasonably believes that it is necessary to issue the requirement for the prevention and investigation of an offence endangering national security”. If that test was satisfied, there was no restriction to information *32 only coming into existence after the NSL’s promulgation. (See paras.62-68, 102(d).)
Whether the upholding of the PII claim was erroneous and resulted in an unfair trial
(5) Claims for PII fell to be considered against an important aspect of the right of a fair trial, namely, the prosecution’s duty of disclosure. The proper approach was to consider whether the relevant information was within the scope of the duty of disclosure; if so whether the claim to PII was established; and if also affirmative, whether the defendant could still receive a fair trial if the claim was upheld. If the result would be an unfair trial, disclosure would be ordered and the prosecution would have to make the disclosure or discontinue the prosecution. This was entirely consistent with the constitutional protections contained in arts.39 and 87 of the Basic Law and the provisions of NSL4, 5, 41, 45 and 63 building in safeguards for persons charged with offences endangering national security (HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, HKSAR v Nayab Amin [2020] 2 HKLRD 1051 applied). (See paras.70-90.)
(6) In the present case, the prosecution’s PII claim was ill-conceived and self-defeating. First, on a true construction of the offence, the prosecution had the burden of proving that the HKA was in fact a foreign agent as an element of the offence, but by their redactions they had removed the only potential basis for establishing such facts. Second, non-disclosure of the redacted facts in any event deprived Ds of a fair trial. They were denied access to information which could enable them to prove their innocence or to raise a reasonable doubt as to their guilt. Therefore, their convictions involved a miscarriage of justice which in any event could not be permitted to stand. (See paras.94-101, 102(e)).
[The above is excerpted from the headnote to the report in HKCFAR.]
