Tong Ying Kit v Secretary for Justice (No. 6) [2021] 4 HKC 439, [2021] HKCA 912

Philip Dykes SC appeared for the applicant in the Court of Appeal in Tong Ying Kit v Secretary for Justice (No. 6) [2021] 3 HKLRD 350, [2021] HKCA 912.

X was committed to the Court of First Instance (the CFI) for trial for, inter alia, offences against provisions of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL). An indictment was preferred, following which the Secretary for Justice (the SJ) issued a certificate under NSL 46(1) directing that X be tried in the CFI before a panel of three judges without a jury on grounds expressed to concern the protection of personal safety of jurors and their family members, and/or the due administration of justice (the Decision). X sought, and was refused, leave to apply for judicial review of the Decision, the Judge determining, inter alia, that the Decision was covered and protected by art.63 of the Basic Law (BL 63), which provides that “[t]he Department of Justice of the Hong Kong Special Administrative Region shall control criminal prosecutions, free from any interference.” On appeal, X submitted, inter alia: (i) before the enactment of the NSL, an accused was entitled to a jury verdict if tried in the CFI; (ii) jury trial in the CFI was therefore a right entrenched in art.86 of the Basic Law (BL 86), which provides for the maintenance of the principle of trial by jury previously practiced in Hong Kong; and (iii) since the Decision removed that right, it engaged the principle of legality, unlike ordinary prosecutorial decisions protected by BL 63, and, because NSL 46 did not abrogate common law protections, the Decision attracted procedural safeguards. X did not argue that the Decision was motivated by bad faith, dishonesty or any other ulterior motive.

Held, dismissing the appeal, that:

• (1) NSL 46(1) had to first be examined in light of the general context and purpose of the NSL as a whole, taking into account the constitutional basis upon which it was applied to Hong Kong, its special constitutional status focusing on safeguarding national security and preventing and suppressing acts endangering national security, and the matrix in which NSL 46(1) existed, including the human rights and rule of law principles referred to in NSL 4, which mandates respect for and protection of the rights and freedoms enjoyed by residents, and NSL 5, which requires adherence to rule of law principles in achieving the primary purpose of the NSL (HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 applied). (See paras.31 – 35, 37, 39, 41.)
• (2) The third of the stated grounds for issuing a non-jury trial certificate in NSL 46(1) — protection of personal safety of jurors and their family members — was to be understood in light of NSL 4 and 5. NSL 46(1), read together with NSL 4 and 5, BL 87 and arts.10 and 11 of the Hong Kong Bill of Rights, sought to ensure X’s constitutional right to a fair trial, as embodied in those provisions, was not compromised. The prosecution also had a legitimate interest in maintaining the fairness of the trial. When there was a real risk that this goal would be put in peril by reason of threats to the personal safety of jurors and their family members, the only assured means of achieving it was that mandated by NSL 46(1). Both reasons specified in the Decision were amply supported by these considerations of fair trial. (See paras.38 – 44.)
• (3) (Obiter) Whether BL 86 entails a personal right to jury trial in the CFI is open to debate (Chiang Lily v Secretary for Justice [2009] 6 HKC 234 (CA), (2010) 13 HKCFAR 208 (CFA); HKSAR v Chan Huandai [2016] 2 HKLRD 384 considered). (See paras.49 – 53.)
• (4) Even if BL 86 had entrenched a right to jury trial in the CFI, reading NSL 46(1), BL 63 and BL 86 as a coherent whole, the Decision was a prosecutorial one shielded by BL 63 from conventional judicial review (Re Shuker’s Application [2004] NI 367, Chiang Lily v Secretary for Justice [2009] 6 HKC 234 (CA), Re Arthurs’ Application [2010] NIQB 75, Re Hutchings’ Application [2020] NI 801, HKSAR v Lai Chee Ying(2021) 24 HKCFAR 33 applied). (See paras.45, 54 – 68, 71.)
• (5) It could not possibly have been the intent of NSL 46(1), read together with NSL 42(1), which directs the timely disposal of the trial, to allow a conventional judicial review challenge against the Decision as that would breed elaborate and protracted satellite proceedings, thereby frustrating the directive of NSL 42(1). (See paras.69 – 70.)
• (6) Accordingly, the Decision was only amenable to judicial review on the limited grounds of dishonesty, bad faith and exceptional circumstances (R v DPP, ex p Kebilene [2000] 2 AC 326, Re Leung Lai Fun [2018] 1 HKLRD 523 applied). (See paras.71, 73.)
• (7) By itself, X’s asserted right to jury trial was insufficient to amount to exceptional circumstances (Re Arthurs’ Application [2010] NIQB 75, Re Hutchings’ Application [2020] NI 801 applied). (See para.74.)

[The above is excerpted from the headnote to the report in HKLRD.]