Since it was imposed in June 2020, the security legislation has had a wide reaching impact – not least on the city’s judicial realm, where several new precedents have been set, including non-jury trials and a more stringent bail threshold.
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.
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
ARTICLE 42 (2) OF THE NATIONAL SECURITY LAW
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.
Read full articles
Explainer: Hong Kong’s new legal precedents after 3 years of the national security law – Part I
Explainer: Hong Kong’s new legal precedents after 3 years of the national security law – Part II
