National security law: Jimmy Lai to stay behind bars as Hong Kong top court rules previous judge failed to properly interpret tough new threshold for bail

Brian Wong
·8-min read

Hong Kong’s top court has extended media tycoon Jimmy Lai Chee-ying’s stay behind bars after ruling a judge had released him on a HK$10 million (US$1.29 million) bond based on an erroneous interpretation of a key provision in the national security law.

Chief Justice Andrew Cheung Kui-nung also said on Tuesday that the 73-year-old Apple Daily founder – who has spent 59 days in jail awaiting trial on charges of fraud and colluding with foreign forces – might apply for bail once again at the High Court, as the Court of Final Appeal lacked jurisdiction to handle his application.

In their 35-page judgment, the top judges held that Article 42 (2) of the security law, which specifies the requirements for granting bail, created a specific exception to the general principle of favouring the temporary release of defendants, introducing a stringent threshold for applications few would meet.

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The lower court’s decision to let Lai out on bail, they said, was tainted by the judge misinterpreting the nature and effect of the new threshold during a previous security law proceeding, incorrectly believing the new legislation had little impact on the normal bail regime under common law.

“The learned judge misconstrued NSL 42 (2) and misapprehended the nature and effect of the threshold requirement created,” the city’s highest court declared. “The [prosecution’s] appeal must accordingly be allowed and the judge’s decision to grant the [defendant] bail must be set aside.”

The court further held that the Beijing-imposed security law, which also criminalises acts of secession, subversion and terrorism, was not open to constitutional review and Hong Kong’s most senior judges had no power to correct parts of the legislation alleged to run counter to the Basic Law, the city’s mini-constitution, or the International Covenant on Civil and Political Rights as applied to Hong Kong.

The [High Court’s] approach erroneously rewrites NSL 42(2) and eliminates the more stringent [bail] threshold requirement it intentionally imposes

Court of Final Appeal judgment

Lai, founder of the Next Digital media group and its tabloid-style Apple Daily newspaper, was placed under house arrest on December 23 after the High Court ruled he had an arguable defence for both charges and was unlikely to abscond.

He resigned as Next Digital’s chairman and executive director two days before the Court of Final Appeal sent him back to jail on New Year’s Eve.

That decision was made after the top court ruled prosecutors could appeal against the lower court’s reading of Article 42 (2) of the security law.

The clause specified “no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing [they] will not continue to commit acts endangering national security”.

Jimmy Lai was placed under house arrest on December 23. Photo: Felix Wong
Jimmy Lai was placed under house arrest on December 23. Photo: Felix Wong

That requirement runs contrary to the common law practice of judges granting bail unless they have reason to believe a defendant may abscond, reoffend or interfere with witnesses.

Although they raised no objection to Lai’s bail with respect to the fraud allegation, prosecutors argued he should be remanded in custody over the collusion charge, as Article 42 (2) appeared to suggest bail should not be given to defendants in security law cases unless there were compelling reasons to do so.

In his decision to release Lai in December, Mr Justice Alex Lee Wan-tang of the lower court said granting bail in a national security case was not fundamentally different from doing so in any other case, aside from the special emphasis on assessing the defendant’s chance of reoffending.

His understanding of the law originated from an earlier judgment on a habeas corpus application by Tong Ying-kit, the first person charged under the security law.

In that judgment, Lee and Mr Justice Anderson Chow Ka-ming ruled that, although Article 42 (2) was couched in a double negative form, the substantive question a judge had to ask was whether the accused would continue to commit offences under the new law while awaiting trial.

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That interpretation, however, did not sit well with the top jurists, who found the judges had wrongly translated the provision into a positive requirement for granting bail.

“This is not a case where one may arithmetically regard two negatives as producing a positive result. The [High Court’s] approach erroneously rewrites NSL 42 (2) and eliminates the more stringent threshold requirement it intentionally imposes as a specific exception to the general principles regarding bail,” the judgment said. “It is clear … that [Lee] persisted in his erroneous line of reasoning [when he released Lai on bail].”

The top court held that in evaluating bail applications in security law proceedings, the judge must first assess whether there were sufficient grounds to believe the defendant would not continue to perform acts that endangered national security. Such acts should only be confined to those “capable of constituting an offence” under the new law, or other existing laws in Hong Kong safeguarding national security.

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The court rejected the prosecutors’ assertion that lawful acts that were nonetheless deemed a threat to national security should also be taken into account.

The ruling added that a judge, in assessing bail applications in security law proceedings, must not treat the defendant as guilty and should consider the possible imposition of appropriate release terms that could ensure the defendant did not commit national security offences while awaiting trial.

If the judge concluded that he or she did have such sufficient grounds, the court should proceed to consider a bail application with the presumption in favour of releasing the defendant.

The top judges rejected the prosecutors’ suggestion of excluding any bail conditions raised by the accused in the court’s assessment, saying it went against the city’s Criminal Procedure Ordinance, which allows the court to examine all relevant matters in considering bail applications.

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Government adviser Ronny Tong Ka-wah, a senior counsel by profession, said the top court’s interpretation had significantly increased the hurdles for applying for bail in national security law cases and defendants could find it more difficult to win temporary release even if they agreed to obey stringent conditions.

Simon Young Ngai-man, a law professor at the University of Hong Kong (HKU), noted the judgment effectively cast responsibility on defendants to persuade the court to grant them release.

“[The ruling] demonstrated respect for the authority of the Standing Committee [of the National People’s Congress] while preserving judicial space to give effect to the human rights clauses of the NSL as a matter of judicial interpretation,” Young said.

The judgment effectively cast responsibility on defendants to persuade the court to grant them release, he said.

However, given that appropriate bail terms could constitute grounds for the court to believe a defendant met the criteria for temporary release under Article 42 (2), Young believed that Lai still had a good chance to win bail when he renewed his application in the High Court.

HKU law professor Albert Chen Hung-yee said he believed the government only won the appeal due to a technical mistake by the lower court judge and that his decision to release Lai might have been the same even if he had applied the “right approach”.

Chen noted, however, that Lai could be an exception to the majority of security law defendants, who would struggle to secure bail in future proceedings.

“It is noteworthy that even before this Court of Final Appeal decision, bail has not been granted in national security cases and the Jimmy Lai case was the only exception. In the Lai case, the bail conditions played an important role in the judge’s decision,” he said

Lai’s case was the first time the Court of Final Appeal, established in 1997 when Britain handed the city back to mainland China, had tackled proceedings stemming from the security law, which was imposed on the city by the central government in June of last year.

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The appeal was heard before Chief Justice Cheung, permanent justices Roberto Ribeiro and Joseph Fok, and non-permanent local judges Patrick Chan Siu-oi and Frank Stock. No overseas judges presided over the hearing, a rare omission for cases before the top court.

Lai was the first defendant to be released on bail after being charged under the security law, prompting Chinese state media to sharply criticise the decision and warn that mainland authorities could take over the case.

Under his previous bail conditions, Lai had been confined to his house on Kadoorie Avenue in Ho Man Tin and ordered to observe an array of “tailor-made” conditions, including being barred from meeting foreign officials, accepting interviews, writing articles or posting on social media.

Lai was first charged with fraud on December 3, alongside two senior Next Digital executives, over the alleged improper use of office space at the company’s headquarters in Tseung Kwan O. He was the only defendant denied bail on that occasion.

One week later, he was charged with colluding with foreign forces in a separate case, with his bail application similarly dismissed, only for it to be later granted by the High Court upon review.

Both cases are set to return to West Kowloon Court on April 16.

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