The Hong Kong judiciary has released a High Court judge’s written reasons for denying bail to one of the 47 democrats facing national security charges following an appeal by the defendant. They also revealed why bail was granted to another opposition figure

Gary Fan. Photo: LegCo.

Former lawmakers Gary Fan and Ray Chan, like most of their fellow accused, have been in custody since February 28 after taking part in a primary election organised by pan-democrat parties in July 2020.

Fan was denied bail twice at the magistrate level before his bail application was again rejected by High Court Judge Esther Toh, on September 7. Formerly a member of the Neo Democrats, Fan announced in May that he had quit the party and was abandoning a career in politics. The group disbanded in June.

Prosecutors, who objected to Fan’s request for bail, said he would continue to endanger national security. They pointed to Fan’s Patreon site, “where membership was paid for in US dollars,” the judge wrote.

(From left to right) Gary Fan, Gordon Ng and Henry Wong get on a prison van on June 1, 2021. Photo: Stand News.

Patreon is a US-based platform, where writers can publish content made available only to paying subscribers.

The defence argued that Fan would like to look after his family if granted bail, as his father suffered from severe dementia, his 80-year-old mother suffered from high blood pressure and diabetes, while his sister had lung cancer.

Toh cited prosecutors as saying that Fan called upon others to oppose the government “in a determined manner,” months after the security law was passed,

A polling station in Tin Shui Estate during the pan-democrats’ primary election in July 2020. File Photo: StandNews.

The judge ultimately rejected his bail application, citing reasons handed down by former Court of First Instance judge Anthea Pang, who determined during a case against Apple Daily founder Jimmy Lai that “‘a determined and resolute person’ may be more likely to transgress than one who is not.”

‘Most diligent legislator’

Separately, Toh wrote in her reasoning for granting bail to former People’s Power lawmaker Ray Chan on September 16, that she considered his past performance as a legislator who had “almost 100% participation in matters of the Council”.

Chan’s defence lawyer was quoted as saying that Chan had been praised by Legislative Council (LegCo) President Andrew Leung as “the most diligent legislator.” He had a past record of cooperation with the government in the chamber “by voting ‘yes'” to government bills or motions.

Chan also announced in May his departure from People’s Power, which he chaired.

Ray Chan. File photo: Etan Liam, via Flickr.

On Chan’s performance in the LegCo, the judge quoted a letter written by a third party and submitted to the court by Chan’s counsel. But the citation was redacted at the request of Chan, Toh wrote. The name of a person who submitted an affidavit in support of Chan’s performance was also redacted.

Two barristers familiar with High Court proceedings told HKFP that such redactions in published judgements are rare, but are at the discretion of the judge.

A redacted portion of Esther Toh’s reasons for granting Ray Chan bail. Photo: Screenshot from judiciary document.

Prosecutors, meanwhile, argued that Chan appeared “determined” in his calls for resistance at LegCo, at protests and internationally. Chan also travelled to Taiwan in 2020 with his fellow party members, where he displayed a flag with the slogan “Liberate Hong Kong, revolution of our times.” The slogan has been deemed illegal since the onset of the security law last June.

The 47 democrats are accused of conspiracy to commit subversion under the national security law, an offence punishable by life imprisonment, over their involvement with the primary organised by democrats to select candidates for an upcoming LegCo election. The election was later postponed on the grounds of coronavirus.

Prosecutors say plans by some of the democrats to secure a majority in LegCo, and then vote down the budget to try to force the chief executive to quit, amounted to subversion.

Only 14 of the 47 have so far been granted bail, which is far more difficult to secure under the Beijing-imposed security law. A judge must be satisfied there are sufficient grounds to believe that the defendant will not continue to commit acts endangering national security.

The law has created a “specific exception” to the general rule in favour of granting bail, Hong Kong’s Court of Final Appeal ruled in January.

Support HKFP  |  Code of Ethics  |  Error/typo?  |  Contact Us  |  Newsletter  | Transparency & Annual Report

Selina Cheng

Selina Cheng is a Hong Kong journalist who previously worked with HK01, Quartz and AFP Beijing. She also covered the Umbrella Movement for AP and reported for a newspaper in France. Selina has studied investigative reporting at the Columbia Journalism School.