The High Court has thrown out the first constitutional challenge to detention on charges under Hong Kong’s new national security law, with the two designated judges calling the application for habeas corpus a wrong procedure while dismissing criticisms about their independence.
But Tong Ying-kit, 23, the first defendant charged under the new law, has not given up on seeking release from custody, and the Court of First Instance will hear his ordinary bail application on Tuesday, when he will be represented by a different legal team led by Lawrence Lok SC.
Justices Anderson Chow Ka-ming and Alex Lee Wan-tang on Friday sided with the government in concluding that Tong’s application for a writ of habeas corpus – for the authorities to justify the legality of his detention – should not be permitted as “there can be no doubt that the magistrate had the lawful authority” to remand him.
Get the latest insights and analysis from our Global Impact newsletter on the big stories originating in China.
“We cannot see any good reason why the applicant does not apply for a review of refusal of bail in the normal way,” the judges wrote in a 43-page judgment. “There can be no question of his detention being without lawful authority.”
The case raised fundamental questions about the relative status of the Basic Law, the city’s mini-constitution, and the new security legislation, and how any inconsistency between the two national laws should be dealt with by Hong Kong courts. But neither of the questions were answered as the judges found it was not necessary for the disposition of Tong’s application.
They also rejected the argument that judges were not independent when designated by the city leader to handle national security cases, and said the applicant’s attack on the legislation’s bail provision was “difficult to understand”, “wholly illogical” and “unreasonable”.
Tong has been held at Lai Chi Kok Reception Centre since July 6, when he became the first defendant brought to court – before Chief Magistrate Victor So Wai-tak, a designated judge – to face charges of inciting secession and engaging in terrorism since the Beijing-imposed law came into effect on June 30.
The waiter was accused of riding his motorcycle into a group of police officers at a July 1 protest, while carrying a flag bearing the popular protest slogan “Liberate Hong Kong; revolution of our times”.
His present application hinges on the interpretation of Article 42 under the new law, which specifies that “no bail shall be granted … unless the judge has sufficient grounds for believing the criminal suspect or defendant will not continue to commit acts endangering national security”.
Philip Dykes SC had argued that the word “continue” suggested it was a “no bail” provision that did not allow his client to make a bail application when he asserted the constitutionally protected right to be presumed innocent.
But the judges observed that it was “immediately apparent that Article 42 does not preclude bail”, as it was only under a very narrow and specific situation – where the judge had reasons to believe the accused would continue to commit offences under the new law while awaiting trial – that bail should be refused.
They said Hong Kong courts ought to adopt the common law approach in interpreting the national security law and read the article in the context of other provisions, such as the express recognition for the presumption of innocence, “the golden thread of our criminal justice system”.
“There is no question of the accused person being required to acknowledge, or admit guilt before he can make an application for bail,” they wrote.
Hence, the judges believed that, in the vast majority of cases, those who would be granted bail under the existing rules laid down in the Criminal Procedures Ordinance would continue to be granted bail, and vice versa.
The judges also stressed that the chief executive did not nominate any particular judge to hear any particular case as the question of assignment remained a matter for the judiciary, and there was no proper basis to argue that the government was in a position to interfere with judicial function.
They further dismissed criticisms about the new law being inaccessible when only promulgated in Chinese, calling the argument “obviously untenable” because there was no requirement for a national law to be accompanied by an authentic English text.