Strict national security bond threshold for other offenses, Hong Kong highest court judge

Hong Kong’s highest court has confirmed that the stricter standard for granting bail to national security suspects also applies to those charged under other laws, if the case involves acts involving danger to national security.

In a written decision released on Tuesday, the Court of Final Appeal explained the reasons for rejecting speech-language pathologist Sidney Ng’s appeal last week. The 28-year-old is one of five people charged with conspiring to publish a series of “seditious” children’s books, an offense under the Colonial Era Crimes Ordinance.

Court of final appeal. Photo: Kelly Ho / HKFP.

Ng was denied bail by High Court Judge Andrew Chan last month, who ruled that she should not be released pending trial as there were no grounds sufficient to believe that it would not continue to commit acts endangering national security.

The speech therapist then asked the Supreme Court to clarify whether such a bond threshold – stipulated in Article 42 (2) of the Beijing-imposed security law – was applicable to offenses that are not created by the legislation. radical.

The appeal committee headed by Chief Justice Andrew Cheung ruled that Ng’s accusation was considered an offense endangering national security. The three-judge panel said the legislation, which criminalizes secession, subversion, collusion with foreign forces and terrorist acts, recognizes that it has an “incomplete framework of laws” designed to protect national security .

Andrew Cheung at the opening ceremony for Legal Year 2021. Photo: GovHK.

The security law does not directly address treason, sedition, and prohibition of specified wrongdoing by or with foreign political entities, the judges said. They said that these are acts against which the Hong Kong SAR must legislate in accordance with Article 23 of the Basic Law.

“If we compare its coverage to what is ‘stipulated in the Basic Law’, it can be seen that if there is an overlap, the NSL fails to address some of the offenses so stipulated, while providing for questions going beyond- beyond these stipulated elements ”, we read in the judgment.

NSL works “in tandem”

Appeals judges cited the case of media mogul Jimmy Lai, whose bail status was reviewed by the highest court in February. The national security law is expected to “operate in tandem with the laws of the Hong Kong SAR, seeking” convergence, compatibility and complementarity “with local laws,” read Tuesday’s ruling, referring to to the judgment on the founder of Apple Daily.

“On purpose, the intention of the NSL is clearly that national security be safeguarded by the complementary application of the laws it creates with existing laws of the Hong Kong SAR, such as those contained in Part II of the Crimes Ordinance, ”the Supreme Court wrote.

The court therefore rejected the arguments of Ng’s lawyers – led by senior lawyer Hectar Pun – who said that the strict bond threshold can only be applied to cases falling under the National Security Law.

Hectar Pun. File photo: Stanley Leung / HKFP

“There is no reasonably defensible basis for the Applicant’s proposition that the stricter threshold for granting bail is limited to offenses created by the NSL. “

The Court of Final Appeal urged the lower court to deal with the case “as expeditiously as possible” and bring it to trial. The court should handle the case proactively, the judges wrote, setting and enforcing strict timetables to avoid delays.

“There should be proactive case management and monitoring of progress by the court, rather than leaving all initiatives to the parties while the remand person remains in remand for long periods of time. “

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