To was sentenced to five and a half years in prison for crimes including biting off a police sergeant's ring finger during the 2019 anti-extradition bill movement. He was released last year
Foreign) visa (BNO visa), or will apply to become a British national, increasing the risk of escaping supervision.
The applicant for judicial review is To Law Wah, and the proposed respondent is the Correctional Services Department's Supervision Case Review Committee. The writ states that the Committee rejected the applicant's application on April 1, 2019, to study for a Bachelor of Laws degree at the University of Birmingham in the United Kingdom. The applicant had never violated the supervision order and had received a relevant acceptance letter. The Committee believes that the Committee's decision significantly interferes with the freedom of movement of a released prisoner and constitutes a disproportionate restriction on the freedom of movement guaranteed by the Human Rights Act.
The writ stated that the applicant was found guilty of four criminal charges in 2021 and sentenced to five and a half years in prison. Although he appealed against the conviction, his appeal was rejected. He was later released in August 2024, and the supervision order began the following month and lasted until August 2026, for a period of 22 months and two days. During this period, he was not allowed to leave the country unless approved by the committee.
Earlier this year, the applicant applied to the Committee through his lawyer to leave Hong Kong to study for a Bachelor of Laws degree at the University of Birmingham in the UK. Senior Superintendent Ng Kee-hang of the Department requested more information, but the Department ultimately rejected the application on April 1 this year, stating that even if To had not violated the supervision order, he had never expressed sincere remorse and remorse for his criminal conviction, and had not yet fully reformed and de-radicalized. It was very likely that after studying in the UK for the completion of the supervision period, supervisors would not be able to go to the UK in person to supervise him. If he was allowed to leave Hong Kong, he might become radicalized again, engage in illegal and violent acts, and even violate national interests.
Studying abroad is not the only way to rehabilitate and integrate into society
The department continued to say that the applicant holds a British National (Overseas) visa (BNO visa) and can apply to become a British citizen after staying in the UK for 5 years and residing in the UK for one year, which increases the risk of escaping supervision; if he violates the supervision order, the department will not be able to supervise or recall him to prison.
The department also stressed that the British government had interviewed a person who violated the supervision order and was wanted for endangering national security. Therefore, the committee had reason to believe that if the applicant violated the supervision order, the British government would not cooperate with the department to send the applicant back to Hong Kong.
The department also stated that while there is no indication that the applicant has emotional problems, if he is allowed to pursue the relevant degree, his ongoing psychiatric treatment would be interfered with, hindering his mental recovery. In summary, even if new conditions can be imposed on the supervision order, it is insufficient to address the problem and manage the risks. The applicant should be eligible for a range of opportunities to improve himself in Hong Kong. Studying abroad is not the only way to rehabilitate and integrate into society. Staying in Hong Kong and undergoing supervision is an appropriate measure to assist his rehabilitation and social integration. Approving his application would pose a national security risk and violate the National Security Law.
Duti appealed, but the committee upheld the decision.
Du Qihua was dissatisfied with the department's decision and appealed, saying that the decision ignored his freedom of movement protected by the Basic Law and the Human Rights Law, and refuted it point by point in the appeal. However, the committee upheld the decision, saying that it had balanced the Post-Release Supervision of Prisoners Ordinance and the Basic Law and the Human Rights Law, and added that the applicant's departure from Hong Kong would constitute a major change in the environment, and regardless of whether the applicant was convicted of a crime endangering national security, the committee must conduct an objective risk assessment.
Regarding the applicant's mental condition, the committee pointed out that one of the conditions of the supervision order is that the applicant must receive psychiatric treatment. If the applicant stays in the UK, the supervisor will not be able to follow up on his or her recovery progress and provide timely assistance; if the applicant violates the supervision order or is in danger of breaking the law, the supervisor will not be able to provide remote counseling and take timely action.
The petition alleges that the applicant agrees that protecting national security and the rehabilitation of released prisoners can be considered legitimate purposes for restricting personal freedom. However, the petition alleges that preventing him from pursuing a Bachelor of Laws degree at an internationally renowned law school is not clearly linked to national security and the applicant's rehabilitation. Instead, the petition alleges that studying law would help the applicant understand the importance of the rule of law and thus achieve the aforementioned objectives. The petition also alleges that the applicant does not meet the academic qualifications for admission to law programs at the University of Hong Kong and the Chinese University of Hong Kong. Although he has applied to City University, he has not yet received an acceptance letter. His continued stay in Hong Kong will prevent him from pursuing law studies, a significant blow to his recovery and disproportionate to the "social benefits" of refusing to allow him to leave Hong Kong.
The writ, citing precedent, alleges that the current Chief Justice of the Court of Final Appeal, Andrew Cheung, has stated that supervised persons should inform the Department of their detailed plans to travel or emigrate outside Hong Kong to verify their authenticity. If supervisory officers are properly informed of the supervised person's intended emigration, they have no power to prevent their plans. Taking these factors into account, and given that the defendant has never violated the supervision order, the court argues that the refusal to approve the applicant's application to study outside Hong Kong exceeded the reasonable requirements for achieving the purpose of the supervision order.
The agency's claim that Du Jiecheng, a British citizen, escaped from custody is pure speculation.
The petition criticized the committee's allegations that the applicant's overseas law degree program might lead to national security violations or hinder his rehabilitation as unfounded and fabricated. Furthermore, the British government's interviews with wanted national security offenders who violated supervision orders were unrelated to the applicant, whose identities were unknown to the applicant, who had not been convicted of any offense endangering national security. The petition also criticized the department's claim that the applicant escaped supervision by becoming a British citizen, which was completely speculative. Furthermore, the applicant would not be eligible to apply for citizenship until 2031, when the supervision period would have expired, and whether or not he applied for citizenship was irrelevant to his studies.
The writ states that the applicant agreed to a series of additional supervisory conditions, including but not limited to providing his flight details, meeting with the supervisor online every 30 days, and returning to Hong Kong at least once before August 31, 2026. According to the applicant's affidavit, even when he was in Hong Kong, the supervisor only visited him approximately once a month, and the visits never lasted more than five minutes. The Board did not explain why the supervisor could not supervise the applicant remotely. The writ concludes by revealing that the applicant accepted a conditional offer of a Bachelor of Laws degree in May of this year, which must be confirmed by September 4 of this year at the latest. The court is requested to hear and determine the judicial review application before August 22 of this year, so that the applicant can commence his studies as scheduled.
