Abstract
Keywords
Under s 9D(1) of the Criminal Procedure Ordinance (Cap 221) (‘CPO’) in Hong Kong, a defendant will be granted bail when he or she applies to a court for it. Bail may be granted subject to certain conditions (set out in a non-exhaustive list of examples under s 9D(3)) to ensure that he or she will not fail to surrender to custody, commit an offence while on bail or interfere with a witness or pervert or obstruct the course of justice (s 9D(2)). This is also known as a ‘presumption of bail’, which has been suggested by the Hong Kong Court of First Instance (‘HKCFI’) as a natural extension of the presumption of innocence: see HKSAR v Wong Chi Fung [2020] HKCFI 392 at [16]. Bail regimes of a similar nature can be found in other common law jurisdictions, for example, the UK (s 4(1) of the Bail Act 1976) and Canada (s 515(1) of the Criminal Code of Canada (RSC 1985) (‘CCC’)).
The introduction of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (‘NSL’), a piece of legislation that has received ‘widespread international condemnation’ (see C Chan, ‘Can Hong Kong Remain a Liberal Enclave Within China? Analysis of the Hong Kong National Security Law’ [2021] PL 271, 272), however, introduced new dynamics to the application for court bail in Hong Kong. Article 42(2) of the NSL (‘NSL 42(2)’) reads: No bail shall be granted to a [defendant] unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security. (emphasis added)
The interpretation of NSL 42(2) and its relationship with the CPO bail regime was addressed in a recent decision of the Hong Kong Court of Final Appeal (‘HKCFA’), HKSAR v Lai Chee Ying [2021] HKCFA 3. In December 2020, the respondent, a pro-democracy media tycoon, was charged with one count of ‘collusion with a foreign country or with external elements to endanger national security’ under art 29(4) of the NSL. Refusing the respondent’s application for bail, the Chief Magistrate considered that there were substantial grounds for believing that the respondent would fail to surrender to custody or commit an offence while on bail.
On appeal, the HKCFI granted the respondent bail. In granting bail, it followed the approach established by itself in Tong Ying Kit v HKSAR [2020] HKCFI 2133 at [37]: ‘whether there are grounds, or reasons, to believe that the defendant will continue to commit “acts endangering national security”’.
The prosecution appealed against the HKCFI’s decision to the HKCFA, which certified the following question as having great and general importance ([2020] HKCFA 45 at [20]): What is the correct interpretation of [NSL 42(2)]?
At the hearing, the prosecution argued that a two-stage assessment should be applied to an application for bail under NSL 42(2). In the first stage, in deciding where there exist sufficient grounds to believe that the defendant will not continue to commit acts endangering national security, a judge should only consider evidence and materials which are available and the relevant circumstances which have occurred at the time of the bail application. Bail conditions are irrelevant at this stage. If the judge is satisfied that the defendant will not continue to commit acts endangering national security, he or she shall proceed to the second stage of the test. The second stage requires a judge to consider whether, if the defendant is to be granted bail, bail conditions should be imposed, bearing in mind the objectives of the s 9D(3) conditions as set out in s 9D(2) of the CPO. In the second stage, the bail regime under s 9 of the CPO applies, meaning a judge can consider the s 9D(3) bail conditions.
On the issue of burden of proof, the prosecution contended that this issue was not engaged at any stage. The applicant cited Lord Bingham’s decisions in R v Lichniak [2003] 1 AC 903 at [16] and Re McClean [2005] NI 490 at [73] to support this proposition.
While the respondent did not object to the need for a two-stage test, he contended that bail conditions are also relevant in the first stage. In arguing so, he relied on art 41(1) of the NSL (‘NSL 41(1)’), which provides that Hong Kong laws apply to procedural matters in the enforcement of the NSL, and he argued that this includes the grant of bail under the CPO.
The respondent also contended that the prosecution bears the burden of proof in establishing which bail should not be granted under NSL 42(2). The respondent cited several leading Strasbourg and UK decisions, including R (O) Crown Court at Harrow [2007] 1 AC 249 at [28] and [35] (per Lord Brown of Eaton-under-Heywood), Zherebin v Russia (2018) 66 EHRR 5 at [60] and Khudoyrov v Russia (2007) 45 EHRR 5 at [173], to support this proposition. He also argued that the presumption of innocence under arts 5(1) and (3) of the Hong Kong Bill of Rights (‘HKBOR’) necessarily extends to that of the grant of bail under NSL 42(2), as art 4 of the NSL expressly provides that ‘[h]uman rights shall be respected and protected in safeguarding national security in [Hong Kong]’.
First, when a judge considers whether there exist ‘sufficient grounds’ to believe that the defendant will not continue to commit acts endangering national security, he or she should consider all relevant factors, including any possible imposition of bail conditions and the need to prevent the defendant from doing anything prohibited under s 9D(2) of the CPO (at [58]–[59] and [70(d)(i)]). ‘Acts endangering national security’ only refer to acts which are ‘capable of constituting an offence under the NSL or the laws of [Hong Kong] safeguarding national security’ (at [70(d)(ii)]).
Second, the ‘sufficient grounds’ question is a matter for the court’s evaluation which does not involve any application of a burden of proof (at [67]–[68] and [70(d)(iii)]). It is a holistic exercise that requires a judge to consider every piece of information and/or material relevant to the first stage. If, after having considered all the relevant information and materials, the judge is not satisfied that there exist sufficient grounds for believing that the defendant will not continue to commit acts endangering national security, bail must be refused (at [70(e)]).
If the judge is satisfied that there exist sufficient grounds to believe that the defendant will not continue to commit acts endangering national security, he or she should proceed to consider ‘all other matters relevant to the grant or refusal of bail, applying the presumption in favour of bail’ (at [70(f)], emphasis added). This includes the lists of considerations set out in ss 9D(2) (objectives of including bail conditions), 9D(3) (bail conditions) and 9G(1) (basis on which bail may be refused) of the CPO. Section 9G(2) sets out the factors which a court may have regard to in deciding whether to refuse bail under s 9G(1) and further includes the background and associations of the defendant (s 9G(2)(c)) and the character and previous convictions (if any) of the defendant (s 9G(2)(f)).
Seen in this light, the Tong Ying Kit approach outlined above is erroneous. It fails to recognise that the judge needs to have sufficient grounds to believe that the defendant will not continue to commit acts endangering national security—as the starting point in the NSL 42(2) bail assessment exercise (at [73], [75] and [78]–[80]). The prosecution’s appeal was therefore allowed.
Commentary
Lai Chee Ying provides a refreshing entry on interpreting the requirements in a bail assessment in a presumption against bail context. Two important issues decided on by the HKCFA—the nature of a presumption against bail as seen in the context of NSL 42(2) and the non-existence of a ‘burden’ of proof in bail considerations—merit discussion. The enactment of the NSL has been subjected to fierce criticisms for its apparent encroachment on fundamental human rights protected under the Hong Kong Basic Law and the HKBOR (see CL Lim, ‘Hong Kong’s New Law’ (2021) 137 LQR 11, 15) For reasons explained below, Lai Chee Ying is a welcoming judgment easing the critics’ anxiety over the potential draconian impacts of the NSL may have on the liberty of defendants thereunder.
Presumption Against Bail
The HKCFA’s resolute rejection of the prosecution’s argument that bail conditions are irrelevant at the first stage of the LCY Test is a welcoming step towards providing for a more accurate assessment of an individual’s likelihood to commit national security-related offences if released on bail. While the nature and seriousness of the national security offence(s) the defendant is charged with are relevant (at [60]), it does not automatically follow that any bail conditions that would be of help in minimising the defendant’s risk of committing national security offences on bail should be disregarded.
The position in Lai Chee Ying is therefore similar to a multitude of foreign jurisdictions with a similar ‘presumption against bail’ regime. An example of this is Canada, where s 522(2) of the CCC provides that a defendant charged with a national security offence shall be remanded in custody, unless he or she ‘show[s] cause’ why his or her detention is ‘not justified’ within the meaning of s 515(10) of the CCC (upheld as constitutional under the Canadian Charter of Rights and Freedoms: see R v Pearson [1992] 3 SCR 665). In R v Gaya [2008] OJ No 2066, the Ontario Superior Court of Justice held that if the defendant is charged with a terrorism offence, the terrorism context of the case may, depending on the facts of a particular case, raise a concern of risk of flight (at [167]). Similarly, the Saskatchewan Court of Appeal held in R v Braun [1994] SJ No 312 that the seriousness of the offence charged per se is insufficient to support a finding under s 515(10)(c) of the CCC that a refusal to grant bail is justified on the basis of the need to ensure the defendant’s attendance in court (at [7]).
The Australian position which mirrors NSL 42(2) can be found in s 15AA of the Crimes Act 1914 (Commonwealth) (‘CA’). Section 15AA of the CA provides that bail must be refused for the national security offences specified under ss 15AA(2)(a), (c) and (d), unless the defendant can demonstrate that there exist ‘exceptional circumstances’ to justify granting bail. Similar to the holistic nature of the consideration of bail under the first stage of the LCY Test, the ‘exceptional circumstances’ test, which is the hurdle for overcoming the s 15AA presumption against bail, is a flexible one (R v NK [2016] NSWSC 498 [26(6)]). It takes into account a myriad range of factors, which include but are not limited to those that ‘bear upon the nature of the alleged offence’ and/or those which are ‘subjective to the particular applicant’ (NK at [26(8)]). It is, importantly, not ‘mere arithmetic’ (Re Granata [2020] VSC 879 [25]).
Lai Chee Ying’s broad approach to the first stage of the NSL 42(2) exercise may therefore be welcomed as commendable as it finds resonance in foreign jurisdictions which adopt flexible approaches to the consideration of bail, despite the existence of a presumption against bail. The nature of the offence charged is part of a holistic assessment in determining whether the defendant would continue to commit acts statutorily recognised to be grounds for refusing bail.
‘Burden’ of Proof
An important clarification made by the HKCFA is that, instead of speaking of a ‘burden’ of proof, the decision as to whether to grant bail ‘does not involve the application of a burden of proof’ (at [67]). Instead, it is ‘a risk assessment as to the conduct of the [defendant] in the future, an assessment that does not lend itself to strict proof at the bail hearing’ (at [68]). Rather than being required to prove to a particular standard that bail ought to be granted, the second stage of the LCY Test involves the same holistic exercise found in bail application under the CPO for other offences, taking into account all relevant circumstances.
NSL 42(2) finds parallel, albeit in a different context in terms of the offences concerned, in s 25(1) of the Criminal Justice and Public Order Act 1994 (‘CJPOA 1994’) in the UK. Section 25(1) of the CJPOA 1994 provides that where a defendant, who has been previously convicted of a grave offence provided in s 25(2) in the UK, is charged with an offence provided thereunder, he or she should not be granted bail unless there exist ‘exceptional circumstances’ justifying the grant of bail. In O, Lord Carswell, citing Lord Bingham in Lichniak and Lord Steyn in R (McCann) v Crown Court at Manchester [2003] 1 AC 787 at [37], held that the balancing exercise carried out under s 25(1) does not involve ‘the application of a burden of proof’ (at [11]).
The HKCFA’s refusal to follow Zherebin and Khudoyrov, however, is a missed opportunity in clarifying the nature of the bail assessment exercise under s 9 of the CPO. It held that they were inapplicable because ‘NSL 42(2) constitutes a specific exception which…displaces [s 9D(1) of the CPO] and the presumption in favour of bail at the [first stage]’ (at [67]). The respondent’s argument, however, was that the Strasbourg authorities are relevant at both stages of the assessment. The HKCFA’s reasoning only disposed of his argument in relation to the first step. Adopting the line of reasoning from the aforesaid Strasbourg authorities do not necessarily upset the existing bail regime under the CPO. This is because both Zherebin (at [54]) and Khudoyrov (at [173]) establish that, under art 5(3) of the ECHR, justification for any period of detention must be ‘convincingly demonstrated’ by the prosecution. Instead of applying a standard ‘burden’ of proof approach, the Strasbourg authorities, to borrow the HKCFA’s terminology, ‘loosely…speak of the prosecution having the overall onus of displacing [the presumption in favour of bail]’ (at [66]). Instead of establishing a strict standard of proof, they clarify what the prosecution’s duties are under s 9 of the CPO. Lai Chee Ying’s refusal to adopt the aforementioned line of reasoning therefore leaves the CPO in an apparent state of confusion: a ‘presumption’ in favour of bail which can only be overcome by a holistic assessment not involving any threshold of proof to be met by the prosecution.
Conclusion
Lai Chee Ying is an important judgment that provides much-needed clarity on the right to liberty of individuals charged under the NSL. Although the mechanism of the LCY Test is specific to NSL 42(2), its discussions on the scope of factors to consider under a regime of presumption against bail and the lack of a burden of proof in a bail assessment are resounding affirmations of established principles of criminal procedure in the common law world.
