The Law of the People's Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (The National Security Law, NSL) has sweeping impacts on the Hong Kong legal system. Other than PRC-based national security offences that Hong Kong has not been familiar with, it has also created procedural changes of which two significant ones are regarding the right to bail and the trial by jury.
Both of them have long been the legal tradition of the common law system of Hong Kong. The International Covenant on Civil and Political Rights (ICCPR) applies to Hong Kong through incorporation into the local law of the Hong Kong Bill of Rights Ordinance (BORO). Rights under the ICCPR are similar to those under the European Convention on Human Rights (ECHR). Hong Kong courts have enthusiastically resorted to the cases of the European Court of Human Rights (ECtHR) on the ECHR as persuasive authorities in their own interpretation of the ICCPR/BORO. [1] Thus, it is of academic value in comparative law to examine and compare how the two issues have been dealt with by Hong Kong courts and the European Court of Human Rights.
Before the enactment of the NSL, Section 9D of the local legislation of the Criminal Procedure Ordinance (CPO) (Cap.221) ensured the right of an accused person to be granted bail. It has taken the stance of presumption in favour of bail, which is consistent with Article 9 of the ICCPR and Article 5 of the BORO that "Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. it shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement."
Article 42(2) of the NSL requests bail to be denied in general for national security cases, where "no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security." For criminal cases involving national security, bail has turned from being generally granted to being only allowed on exceptional grounds, like in the PRC.[2]
The Hong Kong Court of Final Appeal held in HKSAR v. Lai Chee Ying [2021] HKCFA 3 that Article 42(2) of the NSL "creates a specific exception to the HKSAR rules and principles governing the grant and refusal of bail, and imports a stringent threshold requirement for bail applications"(§70(b)) that by virtue of Article 62 of the NSL, displaces section 9D(1) of the CPO and the presumption in favour of bail at the initial stage of the assessment. HKSAR v. Lai Chee Ying has developed a two-threshold test for granting bail in national security cases. The first threshold is that there should be "sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security".(§70(d)) To determine this "sufficient ground", the judge should consider everything that appears to the court to be relevant to making that decision, including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial. Upon satisfying this first threshold, the judge then moves on to consider the second threshold, i.e., the traditional track for determining the grant or refusal of bail as provided under the CPO, where the presumption in favour of bail returns, and elements shall be examined to see whether the accused will "surrender to custody, or commit an offence (not limited to national security offences) while on bail, or interfere with a witness or pervert or obstruct the course of justice." (§70(f))
Opposition activist Tam Tak-chi was the first person to be charged under colonial-era sedition law since Hong Kong's handover to China in 1997. [3] Although the indictment per se against Tam was not raised invoking the NSL, Tam was denied bail like under Article 42 of the NSL by the High Court, as sedition was considered as an offence against national security. It means that the exception of denial of bail under Article 42(2) of the NSL is applicable to other offences not covered by the NSL. It remains to be seen whether such an expansive interpretation and/or application of Article 42(2) of the NSL will be endorsed by higher courts in the HKSAR.
Paragraph 3 of Article 5 of the ECHR, which does not explicitly recognize a general rule for release, is relevant to the right to bail. It has been established by case law that automatic refusal of bail by virtue of the law without any judicial control, is incompatible with the guarantees of Paragraph 3 (Piruzyan v. Armenia, § 105; S.B.C. v. the United Kingdom, §§ 23-24); yet bail can be refused based on four acceptable reasons that the accused, upon release, may cause: danger of absconding, obstruction of the proceedings, repetition of offences, or public disorder. (Buzadji v. the Republic of Moldova [GC], § 88; Tiron v. Romania, § 37; Smirnova v. Russia, § 59; Piruzyan v. Armenia, § 94). The NSL’s exceptional change of the rule for granting bail in national security cases and the two-threshold test developed by the Hong Kong judiciary do not seem to conflict with these standards of the ECHR.
Trial by jury has been long established in Hong Kong as a common law tradition introduced by British rule. It was provided by Article 86 of the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (the Basic Law) that the principle of trial by jury previously practised in Hong Kong shall be maintained. Before the NSL, the procedural requirement of Section 41(2) of the CPO provided that a trial before a judge and a jury was the only mode of trial available for criminal cases in the Court of First Instance (CFI), which is equivalent to the High Court in England.
Article 46(1) of the NSL allows the Secretary for Justice to issue a certificate directing that the concerned national security case be tried in the CFI without a jury but by a panel of three judges. Tong Ying-kit was the first person charged under the NSL and the Secretary for Justice has denied him a trial by jury. In Tong Ying Kit v Secretary for Justice [2021] HKCFI 1397, the CFI rejected Tong’s primary contention that he had a constitutional right to a jury trial in the CFI. The Court ruled that while the practice in Hong Kong has been for jury trials to be held in criminal proceedings in the CFI, it does not mean that the accused has a right, not to say a constitutional right, to a jury trial. Even if such a right did exist, it would have been nullified by the combined operation of Articles 46(1) and 62 of the NSL in respect of trial for national security offences. The Court of Appeal (CA) confirmed the decision of the CFI, that although trial by jury is the conventional mode of trial in the CFI, neither Article 87 of the Basic Law nor Article 10 of the BORO, both guaranteeing the right to a fair trial, specified it as an indispensable element of a fair trial in the criminal process (Tong Ying Kit v Secretary for Justice [2021] HKCA 912). Reading Article 46(1) of the NSL, Article 86 and Article 63 (on Department of Justice's power to control criminal prosecutions) of the Basic Law as a coherent whole, the CA held that, even if Article 86 of the Basic Law provided for a right to a jury trial in the CFI, the decision by the Secretary for Justice to issue a non-jury trial certificate under Article 46(1) of the NSL is a prosecutorial decision protected by Article 63 of the Basic Law, which is only amenable to judicial review on the limited grounds of dishonesty, bad faith and exceptional circumstances.
Article 10 of the BORO, Article 14 of the ICCPR and Article 6 of the ECHR all provide that a person under charge should be entitled to a fair and public hearing by an independent and impartial tribunal established by law. The jury as a common law tradition is not applicable to the civil law systems. Within the scope of ECHR, trial with or without jury trial per se is not a matter of fair trial. A fair trial is more about the examination of the impartiality of the jurors, just as it is required for professional and lay judges. (Bellizzi v. Malta, § 51). The NSL’s authorization to the Secretary for Justice on denying trial by jury in national security cases tried in the CFI does not seem to constitute an infringement on the right to a fair trial when taking the ECHR criteria as reference.
Article 42(2) of the NSL and the two-threshold test developed by the Hong Kong judiciary in granting bail in national security cases, as well as Article 46(1) of the NSL and the rejection of jury trial in national security cases, do not seem to be in contradiction with the standard of the ECHR regarding the right to bail and the right to a fair trial. Bails have been granted to a number of applicants in national security cases by applying the two-threshold reasoning. However, it cannot be denied that the NSL has imposed a sterner limitation on the accused's right to bail. Under the NSL, bail has become an exception instead of normal practice for other offences. As for jury trial, while it is not indispensable for a fair trial, it is true that the conventional practice of jury trial in the CFI has been displaced by Article 46(1) of the NSL in national security cases. The conversions the NSL introduced into the two mechanisms and their further influence in the future remain under observation and concern.
[1] Decisions of the ECtHR was accepted as guidance in the interpretation of the Hong Kong Bill in R v. Sin Yau Ming [1991] HKCA 86, although common law jurisdictions were seen as sources of greater assistance. Then in Ming Pao Newspapers Ltd v. Attorney-General of Hong Kong [1996] AC 907, the Privy Council cited ECtHR cases regarding Article 10 of the ECHR to interpret Article 16 of the Hong Kong Bill of Rights and referred to the ECtHR’s principle of margin of appreciation. That tradition of following ECtHR-influenced approach has been inherited by the Hong Kong Court of Final Appeal in HKSAR v. Ng Kung Siu [1999] HKCFA 10, as its first human rights case after the 1997 Handover. It was stated in Koon Wing Yee v. Insider Dealing Tribunal and Another [2008] HKCFA 21, that, “The decisions of the Strasbourg Court on provisions of the Convention which are in the same, or substantially the same terms, as the relevant provisions of the BOR, though not binding on the courts of Hong Kong, are of high persuasive authority and have been so regarded by this Court.” (§27)
The importance of the ECtHR jurisprudence has been acknowledged by Roberto Ribeiro, a permanent judge for the Hong Kong Court of Final Appeal and the longest serving judge in that court. See The Influence of the Strasbourg Court’s jurisprudence in Hong Kong , published in “Human Rights in Contemporary World –Essays in Honour of Professor Leszek Garlicki” (Ed Marek Zubik) (Wydawnictwo Sejmowe, Warszawa 2017), available at https://www.hkcfa.hk/filemanager/speech/en/upload/1196/The%20Influence%20of%20the%20Strasbourg%20Court%E2%80%99s%20jurisprudence%20in%20Hong%20Kong%20.pdf.
[2] NSL, Article 42; Criminal Procedure Law of the People's Republic of China (Amended on October 26, 2018), Article 67.
[3] https://www.scmp.com/news/hong-kong/law-and-crime/article/3101885/hong-kong-opposition-activist-tam-tak-chi-denied-bail