Stringent national security bail threshold applicable to other offences, Hong Kong's top court rules

Hong Kong’s top court has confirmed that the stricter standard for granting bail to national security suspects also applies to those charged under other laws, if the case involves acts endangering national security.

In a written ruling handed down on Tuesday, the Court of Final Appeal explained the reasons for dismissing an appeal by speech therapist Sidney Ng last week. The 28-year-old is among five people charged with conspiring to publish a series of “seditious” children’s books, an offence under the colonial-era Crimes Ordinance.

Ng was denied bail by High Court judge Andrew Chan last month, who ruled she should not be freed pending trial because there were insufficient grounds for believing that she would not continue to commit acts endangering national security.

The speech therapist subsequently asked the top court to clarify whether such a bail threshold – stipulated in Article 42 (2) of the Beijing-imposed security law – was applicable to offences that are not created by the sweeping legislation.

The appeal committee led by Chief Justice Andrew Cheung ruled that Ng’s charge qualified as an offence endangering national security. The three-judge panel said the legislation, which criminalises secession, subversion, collusion with foreign forces and terrorist acts, recognised it has an “incomplete framework of laws” designed to protect national security.

The security law does not directly address treason, sedition and the prohibition of the specified objectionable activities by or with foreign political entities, the judges said. They said these are acts against which the HKSAR shall legislate in accordance with Article 23 of the Basic Law.

“If one compares its coverage against what is ‘stipulated in the Basic Law,’ one sees that while there is an overlap, the NSL omits to deal with some of the offences so stipulated, while at the same time making provision for matters going beyond those stipulated items,” the judgement read.

NSL operates ‘in tandem’

The appeal judges cited the case of media tycoon Jimmy Lai, whose bail status was reviewed by the top court in February. The national security law should “operate in tandem with the laws of the HKSAR, seeking ‘convergence, compatibility and complementarity’ with local laws,” Tuesday’s ruling read, referring to the judgement on the Apple Daily founder.

“Viewed purposively, the intent of the NSL is plainly for national security to be safeguarded by the complementary application of the laws which it creates together with the existing laws of the HKSAR, such as those contained in Part II of the Crimes Ordinance,” the top court wrote.

The court therefore rejected the arguments by Ng’s lawyers – led by Senior Counsel Hectar Pun – who said the stringent bail threshold can only be applied to cases under the national security law.

“There is no reasonably arguable basis for the applicant’s proposition that the more stringent threshold for the grant of bail is confined to offences created by the NSL.”

The Court of Final Appeal urged the lower court to process the case “with all possible expedition” and bring it to trial. The court should manage the case proactively, the judges wrote, by setting and enforcing strict timetables to avoid delays.

“There should be proactive case management and a monitoring of progress by the court, rather than leaving all initiatives to the parties while the person remanded remains in pre-trial custody for lengthy periods.”