HKSAR v Tong Ying Kit (No 2)

[2021] 3 HKLRD 87, [2021] HKCFI 1644, [2021] HKEC 2534
Esther Toh, Anthea Pang and Wilson Chan JJ
7 June 2021

Facts

The prosecution applied for leave to add a Count 3 for the offence of “causing grievous bodily harm by dangerous driving”, contrary to s.36A of the Road Traffic Ordinance (Cap.374) as an alternative count to Count 2 of “terrorist activities” against D, relying on s.23(1) of the Criminal Procedure Ordinance (Cap.221) (the CPO). D’s main arguments were: that the Court consisting of a panel of three judges did not have the jurisdiction to hear a case which did not fall under the National Security Law (the NSL); and that to add a charge which fell outside the ambit of the NSL was an abuse of process.

Held, allowing the prosecution’s application to amend the Indictment, that:

i) The underlying conduct alleged in Count 3 plainly arose out of the same facts charged under the existing NSL offences in Count 1 and Count 2, and in any event, was added as an alternative count to Count 2. It could not be said that the addition of Count 3 introduced to the case any new substantive facts, or was a novelty or complete surprise.

ii) Even with the addition of Count 3, the proceedings remained to be criminal proceedings concerning offences endangering national security. Article 46 of the NSL does not provide that a certificate directing that the case shall be tried by a panel of three judges can only be issued in a case which only concerns offences endangering national security. Article 46 should not be construed as requiring different tribunals of fact to be formed in one single set of criminal proceedings to deal separately with NSL and non-NSL offences which could properly be pleaded in one indictment.

iii) D’s complaints had no merit.

iv) Section 23(1) of the CPO had been construed in wide terms to include cases in which the indictment failed to change an offence disclosed in the deposition and the point could be reinforced by considering s.51(1)(b) and 51(2) of the CPO. D’s suggestion that s.51(1)(b) was not applicable merely because the Court was a specially constituted court was contrary to art.41 of the NSL.

Application

This was an application by the prosecution for leave to add an alternative count of causing grievous bodily harm by dangerous driving to the count of terrorist activities against the defendant, relying on s.23(1) of the Criminal Procedure Ordinance (Cap.221).

Editorial Note: See [2020] 4 HKLRD 382, [2020] 4 HKLRD 416 and [2020] 5 HKLRD 395 for previous related judgments.

Jurisdictions