Since the Hong Kong National Security Law (NSL) was enacted a little over seven months ago, 97 people have been arrested under the law, and eight have been charged. For Hong Kong’s judiciary, the challenge at hand now is how to interpret the law’s provisions, posing difficult questions on issues including granting defendants bail and the use of juries in national security trials.

This week, the Court of Final Appeal (CFA), Hong Kong’s highest court, ruled that a lower court had erred in its reasoning for granting bail to pro-democracy media mogul Jimmy Lai in December of last year, in effect remanding Lai in prison until his trial in April. AFP’s Su Xinqi and Jerome Taylor reported on the court’s decision:

Hong Kong’s top court on Tuesday ordered pro-democracy media tycoon Jimmy Lai to stay behind bars as it sided with prosecutors in the first legal test of Beijing’s sweeping new national security law.

[…] On Tuesday, a panel of five senior judges agreed with the prosecution and ruled that the lower court judge had erred in granting Lai bail.

The security law, the judges wrote, “creates such a specific exception to the general rule in favour of the grant of bail and imports a stringent threshold requirement for bail applications”.

Legal analysts are closely watching the case for an indication of whether Hong Kong’s judiciary will serve — or even can serve — as any kind of constitutional brake against Beijing’s security law. [Source]

To date, Lai has spent 59 days in jail pending trial on charges of “collusion with foreign forces” and fraud relating to improperly subleasing office space. The CFA’s ruling in his case has set an important precedent on the question of whether defendants charged with national security crimes should be allowed to post bail pending trial.

Lai was initially denied bail in early December 2020, but a superior court overturned the decision later that month, releasing him on USD$1.3 million bail with exceptionally strict conditions mandating house arrest except when reporting to the police three times a week, and barring him from using social media, publishing articles in print or online, and meeting with foreign officials. The decision to grant Lai bail was met with fiery criticism from Chinese state media. Following a government appeal, the CFA reversed that decision on the last day of 2020, sending Lai back to prison pending a hearing on February 1st 2021.

In that period, Hong Kong’s top court saw many changes. In early January, Chief Justice Geoffrey Ma Tao-li, one of three CFA judges who ruled to remand Lai in December, retired as had long been scheduled. Then, the announcement of the five judges for Lai’s February 1 hearing revealed his case would be heard without overseas non-permanent judges, an unusual arrangement, but not without precedent. Hong Kong routinely invites eminent overseas judges to sit on its top court and rule on cases, and Chinese state media has hailed their presence as evidence of continued international trust in Hong Kong’s judiciary. But under the NSL, the Chief Executive hand picks judges to handle national security cases. Finally, it was revealed that newly appointed Chief Justice Andrew Cheung, who was scheduled to preside over Lai’s hearing, attended a one-on-one meeting with Chief Executive Carrie Lam four days prior, ringing alarm bells among legal experts who decried a conflict of interest. Lam defended the meeting as a routine administrative conference.

Handing down their ruling a week after the February 1 hearing, the judges unanimously agreed the lower court had erred in its reasoning for granting Lai’s bail application. The China Morning Post’s Brian Wong reported on the CFA’s explanation for their decision:

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.

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.” [Source]

Observers have suggested that, given the exceptionally strict conditions already previously imposed on Lai, the CFA’s decision that the lower court was too lenient in interpreting the NSL’s bail threshold has made it all but impossible for Lai to be granted bail in the future:

Technically, bail is still possible, but in reality it probably isn't anymore for Jimmy Lai. Original bail conditions granted to Lai were so narrow and stringent already, further tightening by the CFA of the lower court's bail conditions leaves almost no room to maneuver. https://t.co/8iN5FVWF1N

— HKJudiciary (@HKJudiciary) February 9, 2021

Another important takeaway from the CFA’s ruling was its opinion on an argument made by Lai’s defense team that there was an incompatibility between the NSL and the Basic Law, Hong Kong’s de facto constitution. The judges, however, argued that because the NSL was a product of China’s National People’s Congress, Hong Kong’s top court has no jurisdiction to review the NSL’s compatibility with the Basic Law:

37. In our view, in the light of Ng Ka Ling v Director of Immigration (No 2),[33] the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong. [Source]

I am late, but let's dive into today's Court of Final Appeal judgment on the national security law's bail provision.

The most crucial point, which affects all future cases, is that lawyers cannot argue a NSL article should be discarded because it conflicts with the Basic Law. pic.twitter.com/N1mWOnRGSj

— Aaron Mc Nicholas (@aaronMCN) February 9, 2021

This conclusion affects far more than just this one bail case, and suggests that future defendants in NSL cases, such as those accused of chanting secessionist slogans, are going to face difficulties arguing that their chants are protected forms of freedom of expression.

— Aaron Mc Nicholas (@aaronMCN) February 9, 2021

Speaking to local media outlet Stand News, Eric Cheung, a principal lecturer at the University of Hong Kong’s law faulty, said bluntly that “the Court of Final Appeal has surrendered”:

Translated:

[…Cheung] said in a telephone interview with Stand News that the CFA verdict stipulated that the “favorable presumption of bail” does not apply to the National Security Law, and at the same time that the court has no power to rule that the National Security Law is unconstitutional. If there is a provision in disguise that violates human rights, the Hong Kong courts “cannot defy.” To put it bluntly, “the Court of Final Appeal has surrendered.”

[…] Cheung: the Court of Final Appeal “accepts reality.” “If they say white is black you still have to follow.” [Source]

The CFA’s decision had immediate implications for other national security cases. On Wednesday, a magistrate denied bail to online radio show host Edmund Wan Yiu-sing (popularly known as “Giggs”), citing the CFA’s decision. Wan, who was arrested earlier this week, is accused of “stirring hatred against the local and Chinese governments” on his internet radio program.

Hong Kong radio host loses bail bid over charges of making seditious remarks: Cursing Carrie Lam, suggesting use of force like in Ukraine, criticising Beijing governmenthttps://t.co/8wjhuVceE5 pic.twitter.com/e4BfbxzZX0

— Kris Cheng (@krislc) February 10, 2021

Confusingly, Wan was not arrested under the National Security Law, but under a colonial era sedition law known as the Crimes Ordinance originally passed to “outlaw hatred or disaffection” toward the British monarchy and colonial administration. The law had not been utilized in post-handover Hong Kong until September 2020, when it was applied against another radio producer, Tam Tak-chi.

Despite the Crimes Ordinance being entirely separate from the NSL, Hong Kong authorities and the judiciary appear to be applying rules and precedents from the latter to both. For Tam’s case, a designated national security judge was installed to oversee proceedings. In Wan’s case, the NSL-specific exception on the question of bail is being applied. Last month, Tim McLaughlin wrote for The Atlantic about the puzzling application of the Crimes Ordinance amid Hong Kong’s national security crackdown:

“It’s definitely unique,” Simon N. M. Young, a professor and associate dean at the University of Hong Kong’s law school, said of Tam’s case. Since 1997, colonial laws have not been used to curb protest or activism, he told me, but the national-security law appears to have “emboldened the police” to deploy them. “There is a clear intent for the [national-security law] to be integrated with the existing local laws rather than to be a standalone law.”

[…] In that, the national-security law is layering on top of a regime that is nearly 200 years old. The British colonial government in Hong Kong began developing sedition regulations in the 1840s, according to Fu Hualing, the dean of the University of Hong Kong’s law school and the author of a paper on the history of the law. The legislation was originally intended to regulate the press in the new colony but was most notably wielded in 1967 when anti-colonial, leftist riots broke out in Hong Kong, fueled by the Cultural Revolution sweeping the mainland.

At the time, the law was used to prosecute pro-Beijing newspaper figures, whom Britain accused of playing a role in stoking tensions, as well as to suspend printing of their papers. The arrests created a diplomatic crisis: Red Guards surrounded the office of the British charge d’affaires and set it on fire. The same pro-Beijing outlets that today cheer the erasure of freedoms in Hong Kong called the arrests an infringement on the free press and “fascist atrocities.” [Source]

Finally, Hong Kong’s Secretary for Justice has decided that the first defendant to face trial on national security charges will do so without a jury. While Article 86 of the Basic Law declares that “the principle of trial by jury previously practised in Hong Kong shall be maintained,” the National Security Law empowers Hong Kong’s justice secretary to declare a jury-free trial, where defendants would be tried by three judges designated by the Chief Executive. AFP’s Su Xinqi reported on the Secretary for Justice’s reasoning for excluding a jury for the trial of Tong Ying-kit:

Secretary for Justice Teresa Cheng informed the defendant’s legal team in early February, citing “the personal safety of jurors and their family members”, the source said.

[…] The first person to face trial is Tong Ying-kit, a 23-year old man arrested the day after the law came in to effect for allegedly driving his motorbike into a crowd of police officers while flying a protest flag.

Currently on remand, he is charged with terrorism and inciting secession — two new national security crimes — and faces up to life in prison if convicted.

His case is being handled by the High Court’s Court of First Instance, where trials are usually heard by a judge alongside seven to nine jurors. [Source]

Granting the government power to remove juries from national security trials was one of the most heavily criticized aspects of the law when it was revealed last year. The South China Morning Post’s Jasmine Siu reported that legal experts questioned the government’s reasoning, which Chief Executive Carrie Lam refused to explain further:

“Why is it that they can ensure the judges’ safety but not the jurors’?” [said Eric Cheung, legal scholar from HKU.]

The principal lecturer said the jury system was introduced as a safeguard to check against bad law, and Cheng’s decision to “circumvent and damage the system” had resulted in the natural consequence of giving the impression the government did not trust juries.

When asked to address this impression, Chief Executive Carrie Lam Cheng Yuet-ngor declined to comment on individual cases, citing the ongoing judicial process.

But she added: “This is a piece of national legislation and Hong Kong is the primary authority for implementing [it].

“That is already a very strong indication of trust – trust in ‘one country, two systems’, trust in the Hong Kong systems, whether it is executive or judicial.” [Source]

All of these unprecedented changes in Hong Kong’s judicial system have come before even a single NSL trial has begun. It is noteworthy that amid these changes, many of the worst fears about the NSL’s passage—detention without bail, jury-less trials, and the inability of Hong Kong’s courts to serve as a moderating force to the sweeping new security provisions—have already come true.