In the Hong Kong Court of Final Appeal’s judgment dated 9 February 2021, HKSAR v Lai Chee Ying  HKCFA 3, an appeal against an order of bail that had been granted to Lai, a media tycoon, was allowed. Lai was charged with “collusion with a foreign country or with external elements to endanger national security” under Article 29(4) of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL). This case is a new development that overturns the very recent August 2020 cases, Tong Ying Kit v HKSAR  HKCFI 2133 and HKSAR v Tong Ying Kit  4 HKLRD 416. Bail was refused for two highly controversial reasons: (i) no jurisdiction to rule on constitutionality and (ii) the construction of NSL Article 42(2).
No jurisdiction to rule on the constitutionality of the NSL
The court explicitly stated that it had no power to hold any provision of the NSL unconstitutional or invalid as incompatible with the Basic Law (BL) or the Hong Kong Bill of Rights Ordinance (HKBORO). As the NSL was promulgated through legislative acts of the National People’s Congress and the Standing Committee of the National People’s Congress, in accordance with BL Articles 18(2) and (3) – according to which safeguarding national security is a matter outside the limits of Hong Kong’s autonomy – the NSL was not judicially reviewable, as consistent with the ruling Ng Ka Ling v Director of Immigration (No 2) (1999) 2 HKCFAR 141.
Tellingly, the NSL has provisions ranging from substantive crimes relating to national security, to criminal procedure, to the establishment of committees. The court did not discuss the distinction between such provisions, or distinguish possibilities for allowing judicial review pursuant to these provisions. It appears that this construction may be coherent with NSL Article 14, that decisions of the Committee for Safeguarding National Security (responsible for the enforcement of national security) “shall not be amenable to judicial review”. In other words, it did not matter that these provisions contravened BL Article 87 and HKBORO Article 11(1) (presumption of innocence) or the HKBORO Section 8, Article 5(3) (right to bail).
The court referred to NSL Articles 4 and 5, which provide that human rights shall be respected and protected, and that the rule of the law shall be adhered to respectively. Overturning the Tong Ying Kit cases, the court held that while these principles were applicable in construing the NSL, Article 42(2) created a specific exception to general rule favouring granting bail and imported a stringent threshold requirement. The steps were:
(1) The judge should consider everything that appears to the court to be relevant to making that decision, including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial.
(2) The judge should take the reference to “acts endangering national security” to mean acts of that nature capable of constituting an offence under the NSL or the laws of the HKSAR safeguarding national security.
(3) The judge should regard the NSL 42(2) “sufficient grounds” question as a matter for the court’s evaluation and judgment and not as involving the application of a burden of proof.
If the judge concluded that there were no sufficient grounds that the accused would not continue to commit acts endangering national security (Article 42(2)), bail would have to be refused. Otherwise, the court should consider all other matters relevant to the grant or refusal of bail, applying the presumption in favour of bail.
Clearly, the new test is that the presumption of innocence only applies in the second step of the analysis, after a consideration of whether the accused will not continue to commit acts endangering national security. Further, requiring the judge to “believe” the accused will not “continue to commit acts endangering national security” is a high threshold to meet for bail. More importantly, the word “continue” implies that the accused has already committed a crime. In bail applications, the accused must also take care not to admit having committed any act endangering national security. In any event, the wording of NSL Article 42(2) appears at odds with Hong Kong’s common law drafting.
To conclude, the question of bail appears to be concluded in the interim, albeit for highly dubious reasoning, based on convoluted statutory wording.