In the three years since Beijing imposed a national security law in Hong Kong, the city has experienced untold changes. Not least to long-held legal precedents, with the city’s common law traditions also impacted by the legislation – which criminalised secession, subversion, foreign collusion and terrorism when it came into force at 11pm on June 30, 2020.
In the first of a two-part series, HKFP explores the precedents set – and upset – by the security law.
Stringent bail threshold
Prior to the passage of the national security law, the court could refuse bail if it thought an accused person would fail to surrender to custody, commit an offence while on bail or interfere with a witness, or pervert or obstruct the course of justice.
Judges and magistrates would take into account factors such as the nature and seriousness of the offence, and the behaviour and demeanour of the defendant, as well as their occupation and home environment. Their physical and mental condition, criminal record and the nature and weight of the evidence relating to the alleged offence would also be considered.
Under the Beijing-imposed security legislation, however, defendants are subject to a more stringent requirement for bail applications, a new standard that stemmed from a decision by the city’s top court in February 2021 over the bail status of pro-democracy media tycoon Jimmy Lai who was charged with foreign collusion.
The founder of the defunct newspaper Apple Daily was remanded in custody on fraud charges on December 3, 2020. Subsequently, he was charged under the national security law on December 12, 2020, when Chief Magistrate Victor So rejected his application for bail on the grounds that he believed the media tycoon would fail to surrender to custody or may commit an offence while on bail.
Less than two weeks later, on December 23, Lai became the first person charged under the security law to receive bail. High Court judge Alex Lee granted him bail in accordance with Section 9J of the Criminal Procedure Ordinance, which empowers the higher court to confirm, revoke or amend a bail-related decision made by a district judge or a magistrate.
In exchange for bail, Lai was barred from meeting any foreign officials, giving media interviews, publishing articles or posting to social media. He was ordered to pay a HK$5 million cash bail for the foreign collusion case, and a HK$5 million cash bail for a separate fraud case.
The Department of Justice (DoJ) later challenged Lee’s decision to grant Lai bail at the Court of Final Appeal (CFA), and Lai was taken back into custody on December 31. The prosecutors urged the city’s top court to rule on the correct interpretation of Article 42 (2) of the national security law, which states: “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”
Key dates – Click to expand.
- August 20, 2020: The Court of First Instance hears a bid by Tong Ying-kit – the first person charged under the security law – to challenge his pre-trial detention by making a habeas corpus application. Habeas corpus allows a person in custody to challenge the legality of their detention. Tong also challenges the constitutionality of several provisions in the Beijing-imposed security law.
- August 21, 2020: The Court of First Instance dismisses Tong’s application for a writ of habeas corpus. The judges rule that whether the defendant should be given bail was a separate matter to be considered by the court.
- December 12, 2020: Media tycoon Jimmy Lai is charged with one count of collusion with foreign forces. He is said to have requested a foreign country or an institution to impose sanctions or blockade, or engage in other hostile activities against Hong Kong or China. Chief Magistrate Victor So refuses to grant bail to the media tycoon and he is remanded into custody.
- December 23, 2020: Lai is granted bail by High Court judge Alex Lee. He is ordered to pay a cash bail of HK$10 million for his foreign collusion case and a separate fraud case.
- December 31, 2020: Lai is taken back into custody after the Department of Justice challenges Lee’s decision to grant Lai bail.
- February 9, 2021: The Court of Final Appeal sides with the Department of Justice and rules that judge Lee’s decision to extend bail to the media tycoon involved misconstruing Article 42 (2) of the national security law.
- August 30, 2021: Sidney Ng, one of the five speech therapists charged under the sedition law, is denied bail by then-acting chief magistrate Peter Law.
- November 12, 2021: Ng seeks to review her bail status before High Court judge Andrew Chan, who rules that a more stringent threshold for bail under Article 42 (2) applies to the offence the speech therapist was charged with, and that those requirements have not been met.
- December 9, 2021: Sidney Ng applies for a leave to appeal to the Court of Final Appeal, asking for clarification on whether the more stringent threshold for bail applied to non-national security cases. Her bid is rejected by the top court.
In a written judgement handed down on February 9, 2021, the top court said the meaning and effect of the provision should be examined in light of the context and purpose of the national security law. The court would have to take into account the constitutional basis upon which the legislation is applied in the city, it said.
A five-judge panel, led by Chief Justice Andrew Cheung, ruled at the time that a two-stage evaluation must be introduced in cases involving alleged national security offences.
Firstly, judges must decide whether there was sufficient grounds to believe the defendant would not continue to commit acts endangering national security.
“NSL 42(2) creates a specific exception to the HKSAR rules and principles governing the grant and refusal of bail, and imports a stringent threshold requirement for bail applications,” the CFA ruled.
The question of “sufficient grounds” should be regarded as a matter for the court’s evaluation and judgement, rather than requiring either parties to bear the burden of proof, the five-judge CFA panel ruled.
If the judge was convinced that there were sufficient grounds, they may review any other matters linked to granting or refusal bail, and the usual presumption in favour of bail would apply.
The CFA also decided that High Court judge Lee’s decision “wrongly translates” the “double negative” in the Article 42 (2) into a “positive requirement.” He “misconstrued” the provision and “misapprehended” the nature and effect of the threshold requirement created, it said.
“This is not a case where one may arithmetically regard two negatives as producing a positive result. The Court’s approach erroneously re-writes NSL 42(2) and eliminates the more stringent threshold requirement it intentionally imposes as a specific exception to the general principles regarding bail,” the CFA panel ruled.
Lai has remained in custody since December 31, 2020, and has subsequently been convicted of protest-related offences and fraud charges. He is currently serving five years and nine months in jail, and awaiting the resumption of his adjourned national security trial in late September.
Legal debates over the application of the stringent threshold requirement for bail emerged again the following December. Sidney Ng, one of five speech therapists charged and denied bail under the sedition law, asked the top court to clarify whether the same bail requirements applied to non-national security cases, such as sedition, which is outlawed by the Crimes Ordinance.
The CFA dismissed Ng’s bid on December 9, 2021. A three-judge panel ruled that the national security law recognised it provided an “incomplete framework of laws” designed to safeguard national security. It omitted some offences stipulated in the Basic Law, including the controversial Article 23 of the Basic Law – which mandates that Hong Kong shall enact its own security law.
The court said the Beijing-imposed legislation did not directly address treason, sedition and the prohibition of the specified objectionable activities by or with foreign political entities – acts which will be dealt with under Article 23.
Citing Lai’s case, the CFA said it was evident that the security law should operate “in tandem” with local laws, and priority shall be given to provisions in the Beijing-enacted legislation in case of inconsistency.
“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 CFA panel wrote in a December 14 judgement.
The top court also ruled that sedition qualified as an offence endangering national security, and thus the stringent bail threshold would apply.
Since the top court’s decision, most people charged under the sedition law have been denied bail. In the few instances bail was granted, strict conditions were applied, including deleting all social media applications, being prohibited from joining chat groups with more than five participants and handing over social media accounts to the police for investigation.
A landmark ruling last November confirmed that Hong Kong judges must not mete out sentences below the minimum stated in the Beijing-imposed national security law for those convicted of offences considered “serious.” But the far-reaching decision is set to be challenged at the city’s top court next month.
Last November, the Court of Appeal rejected Hong Kong Polytechnic University student Lui Sai-yu’s bid to seek a jail term reduction. Lui was sentenced to five years for inciting secession over selling weapons on Telegram and posting messages which advocated Hong Kong independence.
Then-district judge Amanda Woodcock, who presided over Lui’s case, ruled last April that the offence committed by the university student was of a “serious nature.” Lui pleaded guilty to the charge and was offered a one-third reduction to the starting sentence of five and a half years.
But Woodcock later raised Lui’s prison term from three years and eight months to five years, after prosecutors said the court was bound by Article 21 of the security law to impose a minimum sentence of five years.
Lui became the first national security convict to challenge the fixed-term sentencing provision of the security law. His appeal centred around whether Article 21 of the legislation intended to set five years as a mandatory minimum penalty for serious offences, or a range of starting points between 10 years and five years.
The challenge also gave rise to questions over whether a list of mitigating circumstances listed in Article 33 (1) of the national security law were the only factors that a court may use in adjusting the penalty for a serious offence under Article 21.
The judges went on to say that imprisonment was listed as the only punishment option for a serious offence under Article 21, which reflected how the drafter of the law deemed the gravity of the offences.
“Viewed purposively, the minimum of five years is mandatory,” the judges said.
Mandatory sentences are not common in common law jurisdictions except for murder. Anyone convicted of murder in Hong Kong faces life imprisonment, but the court can exercise discretion and hand out a shorter prison term if the convict was below 18 years old at the time of the offence.
The city’s top court will hear Lui’s challenge against the decision of the appeal court on August 9.
Hong Kong has long regarded trial by jury as one of the most important features of its legal system. According to tradition, trials involving murder, rape, armed robbery and other serious criminal offences are presided over by a judge of the Court of First Instance, accompanied by a jury of seven to nine people.
A jury may also be called to take part in some civil proceedings, as well as some death inquests.
However, Article 46 of the national security law gave the city’s justice minister power to order a non-jury trial in cases handled in the Court of First Instance of the High Court. A certificate may be issued to have a case tried by a panel of three designated judges instead, for reasons including the protection of state secrets, involvement of foreign factors in the case, and to protect the safety of jurors and their family members.
The first national security trial in Hong Kong saw defendant Tong Ying-kit’s lawyers making an attempt to challenge the DoJ’s decision to conduct a non-jury trial. Tong was charged with inciting secession and engaging in terrorist activities, after he drove a motorcycle with a flag reading “Liberate Hong Kong, revolution of our times” into three police officers during a demonstration in Wan Chai on July 1, 2020, the day after the law was enacted.
Tong’s legal team applied for a judicial review of the non-jury trial decision, but it was rejected. They managed to file an appeal to challenge the constitutionality of Article 46 of the security law in June 2021, but the Court of Appeal ruled that the legislation had a “special constitutional status focusing on preventing and suppressing acts endangering national security.”
“Granted jury trial is the conventional mode of trial in the Court of First Instance, it should not be assumed that it is the only means of achieving fairness in the criminal process,” the appeal court held.
Tong was eventually convicted by three judges and sentenced to nine years behind bars in July 2021.
To date, no national security trial has been heard by a jury. The high-profile national security trials involving media mogul Lai, an incitement to subversion case against Tiananmen vigil organiser Chow Hang-tung, and one centred on 47 pro-democracy former politicians and activists who stand accused of conspiring to commit subversion have all been ordered to proceed without juries.