Hong Kong courts have no jurisdiction to review the new national security law, according to lawyers for the government responding to an unprecedented application for habeas corpus made by the first man charged under the sweeping legislation, who has been remanded since last month.
Benjamin Yu SC, for the superintendent of Lai Chi Kok Reception Centre, where the defendant was remanded, also argued for the new law’s overriding powers over the city’s existing laws, but sidestepped a key question from the court on whether that included the Basic Law, the mini-constitution.
“The question doesn’t arise in our submission,” Yu told the High Court on Thursday.
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The exchange emerged as Tong Ying-kit, 23, challenged the legality of his detention under the new law, with his lawyers calling a key provision inconsistent with both the city’s bail law and the Basic Law.
His case before justices Anderson Chow Ka-ming and Alex Lee Wan-tang also marked the first test of how the city’s courts deal with common law rights versus legislation imposed by Beijing, a non-common law jurisdiction.
The two judges will hand down their judgment earliest on Friday afternoon.
If Tong’s bid should fail, the Court of First Instance will proceed to hear his conventional bail application next Tuesday.
Tong has been held at Lai Chi Kok Reception Centre since July 6, when he became the first person brought to court to face charges of inciting secession and engaging in terrorism since the Beijing-drafted law came into effect on June 30.
The waiter was accused of riding his motorcycle into a group of police officers during a July 1 protest, while carrying a flag bearing the popular protest slogan “Liberate Hong Kong; revolution of our times”.
The present case 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”.
At the outset of Thursday’s hearing, Chow confirmed that he and Lee had both been designated to hear national security law cases by Hong Kong Chief Executive Carrie Lam Cheng Yuet-ngor.
Tong’s lawyers, led by Philip Dykes SC, argued that Article 42 appeared to be a “no bail” provision, which enabled arbitrary detention and assumed the defendant applying for bail had committed acts endangering public security.
With reliance on a Chinese dictionary, his second counsel Linda Wong Shui-hung argued that the word “continue” in the article carried the meaning of “will not stop” and “non-stop”, requiring the accused to admit past acts while persuading the judge that would not commit them in the future.
“[The accused] needs to make some confessions that would not be fair, that would not be compliant with the presumption of innocence,” Wong said.
Lee, however, replied that he was not sure if he would agree, as he noted that Article 42 was about risk assessment.
Chow also observed: “Article 42, read in a reasonable way, does not exclude bail.”
Dykes also argued that the new law was unconstitutional because it was inaccessible when only promulgated in Chinese, with no official English text for non-Chinese readers to construe its authentic meaning, which would also affect a defendant’s access to his choice of counsel.
The counsel further argued that the new law infringed on judicial independence as it involved the executive designating judges to hear such cases.
“There is the appearance that the court is not independent, that the judge is not completely impartial or fair,” he continued. “It’s the antithesis to judicial independence.”
Meanwhile, Yu, for the government, opened his case by characterising the challenge as an abuse of process, as the matter at hand was better suited to a standard bail hearing. Tong’s detention, he argued, “cannot possibly be unlawful”.
“That’s really the end of the matter,” he continued. “You can say the magistrate is wrong but that is a matter for the Court of First Instance in bail review.”
Yu pointed out that the new law was the result of a decision by the National People’s Congress Standing Committee (NPCSC) and there was no basis to suggest that Hong Kong courts had the power to declare such a national law as invalid.
As for the construction of Article 42, Yu said the applicant’s interpretation was plainly wrong, as he observed that it was not a general rule to detain all defendants and the court was not asked to make findings of facts during bail hearings, but to simply conduct a risk assessment.
“There is nothing in Article 42 that can be said to be inconsistent with the Basic Law,” he said.