Read the full judgment text of FACC 1/2021 on BabelCite. This Court of Final Appeal judgment was delivered on 9 February 2021 before Chief Justice Cheung, Mr Justice Ribeiro PJ, Mr Justice Fok PJ, Mr Justice Chan NPJ and Mr Justice Stock NPJ.
Criminal law – National Security Law – bail – interpretation of Article 42(2) – threshold requirement for grant of bail – jurisdiction to conduct constitutional review of NSL provisions – whether NSL 42(2) imposes a more stringent threshold than CPO 9G(1) – whether bail conditions may be considered in assessing NSL 42(2) – whether NSL 42(2) involves a burden of proof on the prosecution – whether Judge below erred by eliding NSL 42(2) with discretionary considerations under CPO 9G. Mr Lai Chee Ying was charged under Article 29(4) NSL with collusion with a foreign country or external elements to endanger national security between 1 July 2020 and 1 December 2020, the particulars alleging that he had requested a foreign country or an institution outside the PRC Mainland, Hong Kong and Macao to impose sanctions or blockade or engage in hostile activities against the HKSAR or PRC. The Chief Magistrate refused bail. Alex Lee J granted bail under section 9J of the CPO subject to an undertaking and conditions including not meeting foreign officials, restrictions on media and social media activity, residence restrictions, surrender of travel documents, reporting, and substantial cash security. The prosecution sought leave to appeal. Held: Appeal allowed. The legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR in accordance with the provisions of the Basic Law and the procedure therein are not subject to constitutional review by the Court on the basis of any alleged incompatibility as between the NSL and the Basic Law or the ICCPR as applied to Hong Kong (Ng Ka Ling v Director of Immigration (No 2) applied). NSL 42(2) creates a specific exception to the HKSAR bail regime and imports a stringent threshold requirement: 'no bail unless there are sufficient grounds to believe the accused will not continue to commit acts endangering national security', as distinct from the CPO 9G(1) starting point of 'grant bail unless there are substantial grounds to believe the accused would commit an offence while on bail'. The judge may consider all relevant matters, including possible bail conditions, when assessing the 'sufficient grounds' question. There is no formal burden of proof on the prosecution; the 'sufficient grounds' question is a matter for judicial evaluation and judgment. 'Acts endangering national security' means acts of that nature capable of constituting an offence under the NSL or HKSAR laws safeguarding national security. If the judge concludes that he or she does not have sufficient grounds, bail must be refused; if the judge does have such sufficient grounds, the court proceeds to consider other matters applying the presumption in favour of bail. The Judge below misapprehended the nature and effect of NSL 42(2) by eliding it with the discretionary considerations under CPO 9G, following the erroneous approach in Tong Ying Kit v HKSAR and HKSAR v Tong Ying Kit. The grant of bail was set aside and the respondent remanded in custody; the respondent may make a fresh application for review of the Chief Magistrate's refusal of bail if so advised.
Legal issues: Constitutional review of NSL provisions · Interpretation of NSL 42(2) - threshold for bail · Consideration of bail conditions under NSL 42(2) · Burden of proof under NSL 42(2) · Error in the Judge's grant of bail
Outcome: Appeal allowed; the Judge's decision to grant the respondent bail was set aside and the respondent was remanded in custody pending any fresh application for review of the Chief Magistrate's refusal of bail.
Cited by 53 cases · Cites 3 cases