Case Summary and Outcome

The High Court of the Hong Kong Special Administrative Region (HKSAR), Court of First Instance, dismissed the bail application of journalist and former legislator Mo Man Ching Claudia, alias Claudia Mo, on April 14, 2021 and gave its judgment with reasons for the dismissal on May 28, 2021. The journalist was arrested along with 46 others on the charge of “conspiracy to commit subversion”, and it was alleged that she was part of a scheme to “undermine the proper functioning of the Legislative Council so as to paralyze the operations of the HKSAR government.” She approached the High Court after her bail application was refused by the Chief Magistrate. The High Court also refused bail, for the reason that it was not satisfied that the journalist would “not continue to commit acts endangering national security if bail is granted.” The High Court came to this conclusion after scrutinizing  the journalist’s private WhatsApp conversations and interviews with other journalists from major international media organizations, where she discussed the “loss of human rights and freedom” in HKSAR.

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Facts

On January 06, 2021, Claudia Mo was arrested by the police, for carrying out the “35+” Primaries Scheme, despite the Government having publicly stated that “organization, planning or participating in the ‘35+’ Primaries” was illegal and contrary to the National Security Law (NSL). The “35+” Primaries are primary polls carried out by pro-democracy leaders, ahead of the formal Government elections. Based on the results of these primary polls, nominations to the Legislative Councils are filed by pro-democracy leaders, to ensure that there is no “splitting” of votes. This enables them to select the strongest opposition candidate, so that a majority of the 70 seats in the Legislative Council i.e. 35 + seats are secured by pro-democracy candidates. This was viewed by the HKSAR Government as a scheme 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’” [para. 2].

On July 11 and July 12, 2020, the journalist ran for the Primaries and won. On July 14, 2020, the Government declared the Primaries to be illegal since it had fallen foul of the NSL. Following this, On July 22, 2020, Claudia Mo filed her nomination form for election to the Legislative Council. While the general elections that year were postponed citing the COVID-19 pandemic, Claudia Mo was asked to serve on the temporary Legislative Council in August 2020. In November 2020, she, along with several other lawmakers,  resigned from the temporary Legislative Council. In the months leading up to and after the primaries, Claudia Mo was interviewed by prominent international news outlets. In these interviews, she repeatedly drew attention to the human rights issues and the persistent political chill around the city that the NSL had given rise to. 

These circumstances led to her arrest on January 06, 2021. She was arrested along with 46 others, for violation of Article 22(3) of the National Security Law and Sections 159A and 159C of the Crimes Ordinance, Cap 200 i.e. on a charge of “conspiracy to commit subversion.” 

Article 22(3) of the NSL states, “A person who organises, plans, commits or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence:

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(3) seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region;

A person who is a principal offender or a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; a person who actively participates in the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction.”

Further, Sections 159A and 159C of the Crimes Ordinance, Cap 200 prescribe ingredients and penalties for the offence of conspiracy. 

An application for bail was filed by Claudia Mo before the High Court on April 14, 2021, after the Chief Magistrate refused to grant bail to her on a charge of “conspiracy to commit subversion” on March 04, 2021. 

HKSAR opposed Claudia Mo’s bail application before the High Court by arguing that the 35+ Primaries were an attempt to undermine the legislative council’s functioning, and that the objective was to immobilize the HKSAR government and force its chief executive to resign. It was argued that the Applicant had not only been vocal and influential on local and international platforms, but had maintained “close connection with the foreign diplomats of various countries.” [para. 19], and as such, she would continue to engage in activities prejudicial to national security, if granted bail.

Claudia Mo on the other hand argued, inter alia, that if granted bail, she would retire from politics and would “not act or do any acts against national security” [para. 9].

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Decision Overview

Judge Toh delivered the judgment of the High Court of HKSAR, Court of First Instance.

The main issue before the High Court was whether journalist Claudia Mo should be granted bail, for acts that were allegedly contrary to the NSL. 

At the outset, HKSAR argued that the only reason that the Applicant was unable to carry on the 35+ Primaries scheme to fruition was because the elections had been postponed due to COVID-19 concerns, implying that had the elections taken place, the Applicant, along with other pro-democracy leaders, would have been successful in claiming majority seats in the elections, as planned. HKSAR further argued that there were no sufficient grounds to believe that, if granted bail, the Applicant would not continue to carry out acts which would be prejudicial to national security. The relevant provision of the National Security Law cited in this behalf was Section 42(2), which lays down the threshold requirements to be met while granting bail. Section 42(2) states, “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” It was further argued that the Applicant had on more than one occasion been interviewed by major international news outlets, and had publicly voiced her concerns re: the human rights issues and political chill that the NSL was causing. 

After the Applicant was arrested, the police gained access to various private WhatsApp chats in her phone, with reporters from various international news outlets like the Wall Street Journal, BBC and New York Times, in which she reiterated her views on the NSL. It was argued that the Applicant had not only been vocal and influential on local and international platforms, but had maintained “close connection with the foreign diplomats of various countries” [para. 19].  HKSAR argued that this was evidence enough that the Applicant would continue to engage in activities prejudicial to National Security, if granted bail. HKSAR further submitted that the Applicant was a participant in the Primaries and even played a role in spreading rumors against the Government with regard  to an incident that had taken place at the Prince Edward Mass Transit Railway Station on August 31, 2019. In relation to the incident at Prince Edward station, the Applicant had in an interview said that police officers dressed as plain clothes rioters, were vandalizing shops. 

Claudia Mo on the other hand submitted that she had a clear record and good character. She submitted that the government trusted her, and that she had been asked to serve on the temporary Legislative Council in August 2020. She affirmed that if bail was granted to her, she would retire from politics and would not commit any acts against national security. With regards to the allegations of having spread rumors and making false statements about the Prince Edward MTR incident, she contended that she had information from citizens and other sources, including news agencies, about these incidents and was entitled to make the comments she did as a journalist. She argued that in this regard she was merely fulfilling her journalistic duty. 

In its decision, the Court applied Article 42(2) of the NSL, as well as the principles laid down in  HKSAR v. Lai Chee Ying [2021] HKCFA 3. As per Article 42(2),“no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”

In HKSAR v. Lai Chee Ying [2021] HKCFA 3, HKSAR’s Court of Final Appeal held that the requirements for bail under the NSL are more stringent than other legislations, and bail is not granted unless it is shown that the accused will not commit any acts in violation of national security. While relying on the law laid down in Lai Chee Ying, the High Court stated that “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’” [para. 5]. 

After having considered the evidence placed before it viz. the Applicant’s private WhatsApp conversations and interviews with various international news outlets, and carrying out its  “predictive and evaluative” exercise of the materials before it, the Court held that there were not sufficient grounds to ensure that the Applicant would not commit any acts threatening national security, if bail was granted to her. While rejecting Claudia Mo’s the bail application, the Court stated that while it had “the utmost respect for journalists, particularly those reporting the news impartially and reflecting the situation accurately and without bias”, looking at the Applicant’s impugned speech, it was not convinced that if she were to be granted bail, that she would not engage in acts endangering national security [para. 21].

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