The Hong Kong Court of Final Appeal’s Decision in HKSAR v Lai Chee Ying
Background
Between 2019 and 2020, Hong Kong experienced a prolonged period of social unrest caused by an anti-government movement that evolved into increasingly violent conflicts. Concerned about the growing political instability in Hong Kong, on June 30, 2020, the National People’s Congress of China passed the National Security Law (NSL) with the aims of “safeguarding national security,” “administering Hong Kong in accordance with the law,” and “resolutely opposing external interference.” Amongst the first people to be arrested and charged under this new law was media mogul Mr. Lai Chee Ying. Lai was alleged to have colluded with foreign countries or institutions to impose sanctions against the Hong Kong or Chinese government. On December 12, 2020, he was charged with “collusion with a foreign country or with external elements to endanger national security” contrary to Article 29(4) of the NSL.
The Question of Bail
The charges against Lai were serious, and it could be many years before he stands trial. It was therefore important for the courts to consider whether Lai should be granted bail.
Previously, Hong Kong courts have affirmed that the constitutionally entrenched right to the presumption of innocence means that “an accused must not be deprived of his liberty pending trial without good, valid and sufficient reasons and bail pending trial should be the normal rather than exception.” Accordingly, as in Canada, there is a presumption in favour of bail in Hong Kong. Under the Criminal Procedure Ordinance, a court “shall order an accused person to be admitted to bail” unless there are “substantial grounds for believing … that the accused person would (a) fail to surrender to custody as the court may appoint; (b) commit an offence while on bail; or (c) interfere with a witness or pervert or obstruct the course of justice.”
However, Art. 42(2) of the NSL appears to displace the presumption of bail:
No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.
Taking into account Art. 42(2), the Chief Magistrate refused bail to Lai as he considered that there were substantial grounds to believe that Lai would fail to surrender to custody or commit an offence while on bail. The High Court reversed this decision, observing that the defence case was “arguable” and that Lai’s flight risk can be ameliorated with stringent bail conditions. Thus, it granted Lai bail subject to an undertaking that Lai would not meet with foreign officials, attend any interviews, publish any articles, or make any posts on social media.
The prosecution appealed the decision to grant bail to the highest court in Hong Kong, the Court of Final Appeal.
The Court of Final Appeal’s Analysis of Art. 42(2)
In a unanimous judgment, the Court of Final Appeal held that the High Court judge had erred in granting bail to Lai because he failed to recognize that there is no presumption in favour of bail under Art. 42(2).
The court interpreted Art. 42(2) as providing a two-stage approach to the granting of bail. First, following the language of Art. 42(2), the judge must decide whether there are “sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” This is a “stringent threshold,” and there is no presumption in favour of bail at this stage of the analysis. The court must take all relevant factors into consideration, including whether the imposition of bail conditions could be successful to ensure that the accused will not commit acts that endanger national security. Bail should be denied unless sufficient grounds can be shown to persuade the judge that the accused would not commit acts that endanger national security.
Second, if the judge concludes that the accused would not commit acts that endanger national security, then the courts should go on to consider the other grounds under the Criminal Procedure Ordinance, including whether the accused would fail to surrender to custody, commit an offence while on bail, interfere with witnesses, or pervert or obstruct the course of justice. Only in this second stage of analysis does the presumption in favour of bail apply.
A Generous Interpretation of the Presumption of Innocence
The presumption of innocence is a principle of fundamental justice under the common law. The Supreme Court of Canada has described it as a right which “protects the fundamental liberty and human dignity of any and every person accused by the state of criminal conduct.” This right is intimately connected with the presumption in favour of bail. Lai, like others charged with offences under the National Security Law, is presumed to be innocent until proven guilty in a court of law. Thus, the starting point for the state to convict individuals charged with, or suspected of, an offense is to rebut the presumption that the accused is innocent. Prior to the National Security Law and Lai Chee Ying, this appeared to be the approach taken by the Hong Kong courts: see HKSAR v Wong Chi Fung (quoted above).
Under the common law, the principle of legality means that “fundamental rights cannot be overridden by general or ambiguous words.” Thus, where legislation appears on its face to shift the starting point towards a position where bail is denied and individual liberty is restricted, the courts should be careful to examine whether the language of the statute clearly supports such an interpretation.
The language of Art. 42(2) does not require the courts to reject the presumption in favour of bail. Another way of interpreting Art. 42(2) is that it requires the courts, in assessing bail, to take into account whether the criminal suspect or defendant will continue to commit acts endangering national security. This interpretation, which was adopted by the High Court previously in HKSAR v Tong Ying Kit, would consider the accused’s likelihood of committing an act endangering national security as one of many risk factors in the bail assessment without shifting in the presumption in favour of bail. This approach would favour a generous interpretation of the presumption of innocence because any reasonable doubt would be resolved in favour of the accused person.
It is true that some common law jurisdictions have delineated “a narrow set of circumstances” where the presumption in favour of bail can be reversed. In R v Pearson, the Supreme Court of Canada held that a reverse onus for an accused charged with trafficking in narcotics with respect to bail could be justified due to the unique characteristics of the offence. Trafficking in dangerous drugs, according to the Supreme Court, is highly lucrative and creates huge incentives for criminal behaviour after arrest and on bail. Drug trafficking often occurs in a highly sophisticated commercial setting which allows traffickers access to funds and the means to abscond. In comparison, national security offences are a very different type of offence. There is no doubt that they can be potentially serious offences, but the court’s analysis must not stop there. It should analyze why these offences create a special risk that the accused will continue to commit further offences on bail or abscond from trial. The courts should be especially vigilant where national security offences or political offences are involved because they are especially vulnerable to manipulation by governments seeking to suppress dissent. Unfortunately, the court in Lai Chee Ying failed to scrutinize Art. 42(2) rigorously: it was simply satisfied without elaboration that stringent conditions for the grant of bail were justified by the “cardinal importance” of safeguarding national security.
Conclusion
September 26, 2023 marked 1,000 days since Lai has been deprived of his liberty in a maximum-security prison. Whatever the outcome of his trial, he has yet to be convicted of the national security offence with which he is charged. If the Court wishes to take the right to the presumption of innocence seriously, it should reconsider whether the approach it has taken is a generous interpretation of an accused’s rights.
