One Media founder Lai Chi-ying, who is charged with fraud and the Hong Kong National Security Law, was granted bail by the High Court of Hong Kong last week. The Court of Final Appeal on Thursday (31) approved the Department of Justice’s appeal application, Lai Chi-ying must be returned to the scabbard pending trial. It is worth noting that the representative of the Department of Justice said in court that the “presumption of innocence” does not apply when dealing with bail under the National Security Law, and stressed that the National Security Law is a serious crime, and the defendant is like a “murder suspect”.
“Release Lai Chi-ying! Shame on you for incriminating yourself with your words!” The last day of 2020, Lai Chi-ying was again sent to the prison car, a large number of supporters in the cold wind outside the court in solidarity, the scene was once chaotic.
The Department of Justice: National Security Law does not have a “presumption of innocence” when dealing with bail
In the trial, on behalf of the prosecution of the Department of Justice senior assistant criminal prosecutor Chow Tin-hang said that the National Security Law was enacted by the Standing Committee of the National People’s Congress of China, the purpose is to protect Hong Kong’s local national security, so the court in the interpretation of the relevant legislation, must take into account the legislative intent.
He also quoted Article 42(2) of the National Security Law, “For criminal suspects and defendants, bail shall not be granted unless the judge has good reason to believe that they will not continue to commit acts against national security.” Chow Tin-hang argued that trial judge Lee Yun-teng, who granted bail to Lai Chi-ying, misunderstood the legislative intent of Article 42.
He said the prosecution agreed that in general criminal offences, the court maintains the legal principle of “presumption of innocence”, so the defendant has the right to bail after being prosecuted; but when it comes to national security law offences, bail conditions cannot be compared with general criminal cases, and said the “Hong Kong National Security Law” is not under the same legal system in Hong Kong, there is no “presumption of innocence” in the provisions, when considering whether to grant bail, should give more consideration to the “national security” issue.
He also said that the defendant faces a serious charge under the Hong Kong National Security Law, which carries a maximum sentence of life imprisonment, “like a murder suspect”, and the court will not normally grant bail, and mentioned that national security involves significant public interest, the threshold for granting bail must be quite high.
Defense: National security law does not affect the practice of Hong Kong courts in dealing with bail
Deng Leqin, a senior barrister representing Lai Chi-ying, countered that the trial judge, Li Yun-teng, had fully considered the arguments put forward by the Department of Justice when considering granting bail to the defendant, and was satisfied that Lai Chi-ying would comply with the bail conditions and not contact foreign groups, and would not repeat the crime. The defense also said that the existence of the Hong Kong National Security Law does not affect the consistent practice of Hong Kong courts in considering bail in criminal cases.
The Court of Final Appeal finally approved the application of the Department of Justice, the case was postponed until February 1 next year, Lai Chi-ying must be returned to the scabbard pending trial. The judge found that the provisions of Article 42 of the National Security Law are controversial and therefore granted the prosecution’s application for leave to appeal on bail.
Is there really no “presumption of innocence” in the National Security Law?
One of the focal points of the trial was the Department of Justice’s claim that there is no “presumption of innocence” in the National Security Law of Hong Kong.
However, the reporter looked up the information and found that Article 5 of the Hong Kong National Security Law states that “a person is presumed innocent until convicted by a judicial authority”. Even the senior barrister, Mr. Tang Jiahua, who has defended the National Security Law for many times, reproduced the relevant reports in social media, saying that Article 5 of the National Security Law has clearly stated that anyone must be “presumed innocent” before being convicted, and criticizing the prosecution’s lawyer’s remarks as “really shameful”.
The “presumption of innocence” is also the original basic principle of common law in Hong Kong. Zhang Daming, a principal lecturer at the University of Hong Kong’s Faculty of Law, told the station that the facts show that there are many contradictions between the national security law and Hong Kong’s common law, and that the crux of the problem is that the national security law legislation itself is subversive of Hong Kong’s local laws.
Zhang Daming said: “The national security law is not a law drafted in Hong Kong, under one country, two systems, the paradox is that the existing court is dealt with according to local law. Now make to the national security law is a complete subversion of the existing laws of Hong Kong, because the law is not discussed, it is written, and then said that the power of interpretation is in the Standing Committee of the National People’s Congress, not the Hong Kong court, it brings out many problems, impact on the existing legal system in Hong Kong.”
Zhang Daming said that the Hong Kong courts face two different legal systems, the Hong Kong National Security Law and Hong Kong common law, adding to the difficulty of the verdict.
As early as July this year, when the National Security Law came into effect, the University of Hong Kong Law School Professor of Public Law Chan Man Man pointed out that Article 42 of the National Security Law provides that “if the suspect is not satisfied that he does not continue to endanger national security, otherwise he is not allowed to be released on bail,” and Article 5 of the “presumption of innocence” contradicts itself.
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