As the bail applications of the 47 pro-democracy activists arrested on 6 January 2021 continue to move through the Hong Kong courts, we bear witness to the very real difficulty that the judiciary is facing in implementing the National Security Law for Hong Kong (“NSL”).

The NSL compels the Hong Kong Government to, among other things, appoint and designate special judges to hear cases brought under the NSL. This in effect creates a parallel court system, one for those accused with offences under the NSL, and the other for everything else. While it is far from clear on what basis those judges are picked, we do know that the task of trying to implement the law is one fraught with difficulty for those selected. This is because the NSL is birthed in one distinct legal culture, namely Mainland China’s Civil Law system, but is to be used in a very different one - Hong Kong’s Common Law system.

A plain reading of the NSL tells us that it is nothing like other pieces of legislation in Hong Kong. Rather, the NSL is very much in style and in substance similar to other pieces of legislation on security in Mainland China, including the 2015 National Security Law of the People’s Republic of China.

Drafted and passed by the National People’s Congress Standing Committee, who then listed it under Annex III of the Basic Law, the NSL was applied immediately and without going through the local legislative process that would normally occur. In fact, the full text of the law was only made available at the time it became effective. This was the first time a law has been implemented this way in Hong Kong, and such rushed implementation itself created issues as no one was prepared (including the courts).

This brings us to the text of the law itself. The NSL creates four new criminal offences: secession, subversion, terrorism and collusion with foreign forces. However, by Hong Kong’s usual standards of legislation, the NSL is incredibly short, especially for a piece of criminal legislation. The four offences are vaguely worded and loosely defined yet the penalties are heavy (to put it mildly). This imprecision, deliberate or otherwise, gives the authorities a wide discretion to arrest and detain, which creates uncertainty and fear. Some will say that is indeed the hallmark of legislation aimed at stopping ideological threats, rather than imminent attacks on the public.

While the ambiguity gives more power to authorities, it also creates difficulties for the judges who have to apply the law to specific cases. One must keep in mind that Hong Kong’s existing criminal justice system is one created to protect the right to a fair trial, to presume innocence until proven otherwise, and ultimately, to protect human rights. So, having to apply a law designed to do the opposite of that not only magnifies the uncertainties of how it should be applied, but is also an affront to the system itself. That is precisely what appears to be happening now, as the Hong Kong courts scramble to work out the processes, procedure, and limits of essentially what is a new national security court system. This is a task made all the more difficult under the glare of Beijing and under the megaphone of State-controlled media.

We first saw this play out with the bail application for Mr. Jimmy Lai Chee-ying, the founder of this newspaper. On 12 December 2020, he was charged with one count of “collusion with a foreign country or with external elements to endanger national security” under Article 29(4) of the NSL. His bail application had to go all the way up to the Court of Final Appeal.

In reading the judgement of the Court in his case, the problems with trying to apply Common Law techniques of interpretation to a Mainland law are immediately apparent. While the Justices tried to read the NSL within the “context or matrix of the existing bail regime” in Hong Kong, it is clear that the two do not mix. Hong Kong’s Criminal Procedure Ordinance codifies a presumption in favour of bail, which means bail will be granted unless it is positively established that there are grounds for believing the accused would fail to surrender to custody, commit an offence while on bail or interfere with witnesses or pervert or obstruct the course of justice if granted bail. On the other hand, Article 42(2) of the NSL comes from the exact opposite position. That is, bail must be refused “unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security”. Note the words “continue to” in that provision of the NSL itself presumes guilt.

Therefore, and with all due respect to the Court, it is very difficult to see how Article 42(2) can be reconciled as merely just introducing a “new and more stringent threshold requirement for the grant of bail”. It is in substance fundamentally an opposite approach to the question of the right to bail and upends the right to a fair trial and other protections which are cornerstones of Hong Kong’s justice system.

Further proof of the problems this new law is creating for our court system can be seen as we witness how the 47 accused have been treated with defendants having to wait for over 12 hours in court just before their bail applications to be heard, and then the hearing itself is lengthy as the Magistrate, prosecutors, and defence counsel (or the self-represented defendant) pour over the evidence to determine whether bail should be granted under this new “threshold” set by the NSL.

While 11 have now been granted bail, the applications for those who remain are still ongoing. This means they will continue to be remanded in custody and will probably have to stay there for months, given the pace at which the court is working out the new bail system. So even leaving aside the questionable nature of the charges against the accused, the net effect of this whole process is that these defendants are being punished even before their trial has begun. This kind of deprivation of liberty is something we try to avoid in our existing criminal justice system, but it is par for the course in Mainland China where preventative or administrative detention without trial is a frequent law enforcement tool.

All this goes to show that even if the legislative aims of the NSL are legitimate, the way it is written, promulgated, and how it will be applied matter a great deal. As a Common law system, we work on the basis that legislation will be written and promulgated in a particular way and that the courts will then apply familiar methods to its interpretation and application – all of which reduces uncertainty in the law. Regrettably with the NSL however, courts are being forced to apply Common Law tools and principles to a Mainland piece of legislation, which is only likely to produce inconsistent results and please no one in the end. This will only make those calling for judicial reform yell even louder, all the while ignoring the fact that the problem lies not with the courts, but the legislation itself.

(Davyd Wong is a practising solicitor and a member of the Council of the Hong Kong Law Society. He can be contacted at www.davydwong.com. The opinions expressed here are his alone, and do not constitute professional advice of any kind.)

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