Hong Kong’s top court has upheld an appeal against a HK$10 million cash bail extended to pro-democracy media tycoon Jimmy Lai, who is facing trial over allegations of fraud and foreign collusion under the Beijing-imposed national security law. He has been remanded in custody.

The Court of Final Appeal handed down a written judgement on Tuesday upholding the government’s challenge against Lai’s bail granted by High Court Judge Alex Lee on December 23, 2020.

Jimmy Lai
Jimmy Lai being transferred to the Court of Final Appeal on February 9, 2021.

The appeal was heard last Monday by a five-judge panel comprising of the new Chief Justice Andrew Cheung, permanent judges Roberto Ribeiro and Joseph Fok, and local non-permanent judges Patrick Chan and Frank Stock. The five judges were hand-picked by Chief Executive Carrie Lam to handle national security cases.

In a 35-page judgement, the appeal panel ruled that paragraph 2 in Article 42 of the national security law created a “specific exception” to the general rule in favour of the granting of bail and said the provision imported a “stringent threshold requirement” for bail applications.

Article 42 stipulates that no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing he or she will not continue to commit acts endangering national security.

The top court said Judge Lee “misconstrued” the provision and “misapprehended” the nature and effect of the threshold requirement in the security law. It said Lee never made a “proper assessment” under the security law provision.

Court of Final Appeal judiciary
Court of Final Appeal. Photo: GovHK.

“In the Judge’s ruling granting bail to the respondent, he applied this erroneous line of reasoning and his approach was clearly inconsistent with the Court’s analysis in this judgment and could not be supported,” the top court judges wrote.

The top court ruled that it would set aside Lee’s extension of bail to the Apple Daily founder, meaning Lai will have to spend the Lunar New Year in detention. The court said that Tuesday’s ruling was of a “limited nature,” adding the 73-year-old may make a fresh application for a review of the Chief Magistrate’s refusal of bail.

Lai’s lawyer told reporters outside the court that he will file a new bail application, but the application is unlikely to be completed within the day as they needed time to prepare documents.

The media mogul stands accused of committing fraud by violating land-lease terms, as well as using Twitter and his pro-democracy tabloid to “request” foreign governments to impose sanctions on Hong Kong and mainland Chinese officials.

National security Hong Kong flag
Photo: GovHK.

The Department of Justice (DoJ) opposed Lee’s decision to place Lai under house arrest, along with other restrictions including seizing his travel documents and barring him from posting on social media and giving media interviews.

Lai was put behind bars again on New Year’s Eve after the top court granted leave to the DoJ to challenge Lai’s bail decision. He was refused bail twice earlier by Chief Magistrate Victor So, before seeking bail at the Court of First Instance.

During the appeal hearing last Monday, prosecutor Anthony Chau argued the court should adopt a “two-stage approach” when reviewing bail applications for cases linked to national security charges. The court should give priority to Article 42(2) of the security legislation, Chau said, adding preventive bail conditions should only be considered in the latter stage.

Lai’s leading counsel Stewart Wong, on the other hand, cited a previous court judgement that said the security law did not suggest an “absolute no bail” provision, despite national security offences are often seen as “high-risk.”

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Kelly Ho has an interest in local politics, education and sports. She formerly worked at South China Morning Post Young Post, where she specialised in reporting on issues related to Hong Kong youth. She has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration.