The thoughts of the Hong Kong Court of Final Appeal on Jimmy Lai’s bail application are now up on the Judiciary website. Their lordships will have gratified Mr Henry Litton by keeping their comments brief – at least by judicial standards – so readers with a taste for this sort of thing can be recommended to go here.

The newsworthy gist of the CFA’s thoughts was that Mr Lai can stay in jail. However further action is in prospect. The court held that the High Court judge who released Mr Lai approached the matter in the wrong way. But if he had approached it in the right way he might have arrived at the same conclusion. So Mr Lai is free to try again.

Jimmy Lai. Photo: Studio Incendo.

Mr Lai has now been jailed by a magistrate, freed by a High Court judge, jailed again by the Court of Appeal, and been told he can return to stage two by the Court of Final Appeal. This is a good illustration of the old joke that the law courts are open to all … like the Ritz Hotel. Mr Lai is a millionaire, which is lucky for him in the circumstances. The rest of us can look forward to being bullied by publicly-funded prosecutors.

Lawyers will note the unsurprising observation that the Hong Kong courts cannot consider whether acts of the Central Government might be incompatible with the Basic Law. If they are, so much the worse for the Basic Law. The CFA also noted that the National Security Law (hereafter the NSL) stated that in the event of a conflict between the NSL and Hong Kong’s existing laws, the NSL would prevail. That is also unsurprising.

The effect of this is that Hong Kong now has two parallel legal systems. If you are an ordinary decent criminal who mugs old ladies or swindles banks, then your prosecution will be conducted under the old system and you will benefit from the rights which that system enshrines.

A photo taken inside the Court of Final Appeal during the Ceremonial Opening of the Legal Year 2021. Photo: GovHK.

If you infringe the NSL, on the other hand, you fall down a regulatory rabbit hole into a legal system where some of those rights are no longer available. You do not have the right to bail, you do not have the right to a jury trial, you do not have the right to a judge not drawn from a list which has been compiled, effectively, by the prosecution. If the prosecution thinks things are not going too well here, you may find the whole proceedings transferred to the mainland, where you will be deprived of further constitutional embellishments like the right to the lawyer of your choice and the right to a fair trial.

The least one could hope for, under these circumstances, is that the boundary between the two systems would be clear. But the Department of Justice — eyes firmly fixed on its major objective these days, which is to put as many of the government’s critics as possible behind bars – is not helping.

Last Wednesday Mr Edmund Wan Yiu-sing appeared in the West Kowloon Magistracy on a charge of sedition. This is not a charge under the NSL; the prosecution cited the relevant parts of the Crimes Ordinance. These are a venerable colonial-era offering which started life as a piece of model legislation circulated by the-then Colonial Office of the British government in the 1930s.

Photo: GovHK.

Prosecutor Ivan Cheung said that although the charges were not covered by the NSL they did involve “behaviour endangering national security” and cited the CFA’s judgement as warranting a “more stringent” approach to the granting of bail in national security cases. The magistrate then remanded Mr Wan in custody. The full trial will not take place until May so this means that Mr Wan, who is entitled to be presumed innocent, will have been in custody for three months before he gets his day in court.

And the question which arises is, of course, is it acceptable – is it legal? – for the procedural parts of the NSL to be applied to cases in which the offence is an ordinary pre-existing one. The CFA did not consider this point because it was not at issue in Mr Lai’s case. So Prosecutor Cheung’s reliance on that decision could be considered a bit premature.

Musing over the documents on which the CFA relied when considering the legislative intent of the NSL is not much help. A great deal seems to depend on the rather slender question of whether “the law” is the same thing as “the Law”.Consider, for example the Address to the NPCSC (China’s legislature for all practical purposes) which includes this passage: “… The Law expressly stipulates that human rights shall be respected and protected in safeguarding national security in the HKSAR. The rights and freedoms … which the residents of the HKSAR enjoy shall be protected in accordance with the law. The Law also fully reflects the internationally-practised rule-of-law principles such as conviction and punishment of crimes as prescribed by law, presumption of innocence, protection against double jeopardy, protection of parties’ rights in litigation and to fair trial.”

Clearly here “the law” is the law generally and “the Law” is the NSL. In this light we can perhaps interpret NSL clause 5: “A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected.”

In other words, what we must now call the old system prevails unless the NSL applies because the offence is an NSL offence. This seems to be the view of the CFA in paragraph 42, which says that the NSL’s restrictive bail rules apply in “NSL cases” – so, presumably, in other cases they do not.

Photo: GovHK.

Similarly in para 53 there is a distinction between “offences either under the NSL or under HKSAR law.” A footnote offers “Such as the offences of treason, incitement to disaffection or sedition under Parts I and II of the Crimes Ordinance (Cap 200).”

That “such as” is ominous, since it implies that even the CFA is not sure which existing laws could be regarded as “laws of the SAR safeguarding national security.” is it to be left up to the prosecutor in each case?

I expect in the long run the practical importance of a clear dividing line will become apparent and judges will insist that if the prosecution wishes to benefit from the considerable help provided by the NSL, then it must charge the defendant with an NSL offence. After all, under the existing Hong Kong legal system, if the prosecutor can establish that the defendant is likely to offend while on bail then bail will be refused. The NSL’s “more stringent” requirement is that bail should be refused unless the magistrate is satisfied that the defendant will not reoffend. This is a higher bar but not an insuperable one. It does not mean that the refusal of bail should be automatic.

The Department of Justice needs, perhaps, to examine itself in a mirror. Leaving aside the legal intricacies there is something indecent about taking months or years to charge a person, and then insisting that national security will be endangered if he or she is not immediately incarcerated pending trial. We all have the right to be free unless convicted. This should not be trampled on without good reason. 

HKFP is an impartial platform & does not necessarily share the views of opinion writers or advertisers. HKFP presents a diversity of views & regularly invites figures across the political spectrum to write for us. Press freedom is guaranteed under the Basic Law, security law, Bill of Rights and Chinese constitution. Opinion pieces aim to point out errors or defects in the government, law or policies, or aim to suggest ideas or alterations via legal means without an intention of hatred, discontent or hostility against the authorities or other communities.

Tim Hamlett

Tim Hamlett came to Hong Kong in 1980 to work for the Hong Kong Standard and has contributed to, or worked for, most of Hong Kong's English-language media outlets, notably as the editor of the Standard's award-winning investigative team, as a columnist in the SCMP and as a presenter of RTHK's Mediawatch. In 1988 he became a full-time journalism teacher. Since officially retiring nine years ago, he has concentrated on music, dance, blogging and a very time-consuming dog.