Court Dismisses National Security Law Challenge

The High Court has rejected the first legal challenge against the constitutionality of the new national security law, in ruling against an application to free the first man charged under the law on the grounds that he is being unlawfully detained ahead of his trial.

Justices Anderson Chow and Alex Lee dismissed arguments that bail conditions imposed under the law violates the presumption of innocence, effectively prevents judges from granting bail, or allows arbitrary detentions.

They also rejected claims by defence lawyers that the minimum sentences prescribed for secession and terrorism-related offences under the law restricts the independence of the judiciary; or that judges cannot be free from government influence just because those responsible for adjudicating national security cases are all appointed by the Chief Executive.

The High Court judges say lawyers for the defendant, Tong Ying-kit, were wrong to file a writ of habeas corpus that challenges the legality of his detention, saying they should instead have applied for an ordinary review of the Chief Magistrate’s decision to withhold bail.

“There can be no doubt that the Chief Magistrate had lawful power or authority… to make an order remanding the Applicant in custody pending the next hearing”, the justices wrote.

They rejected as “unreasonable” and “wholly illogical” arguments by senior counsel Philip Dykes that bail requirements under the law – which state that the judge cannot grant bail unless he or she has sufficient grounds to believe that the suspect will not continue to commit acts endangering national security – is effectively a “no-bail” condition that violates the presumption of innocence.

They said there’s nothing in the law to suggest that defendants seeking bail must first admit his guilt, and notes that the presumption of innocence is expressly recognised in Article 5 of the law.

“It is immediately apparent that Article 42(2) does not preclude bail being granted to a person accused of having committed an offence endangering national security”, they said.

Practically speaking, they said in the vast majority of cases, the way that judges deal with bail hearings for national security cases would be exactly the same as how they deal with any other criminal case.

“While there may be a difference of emphasis between… the [Criminal Procedure Ordinance] and Article 42 of the National Security Law, the impact of Article 42 is more apparent than real”, they said.

On the issue of whether judges appointed by the Chief Executive to deal with national security cases can do their jobs independently, the justices said “there is no proper or sufficient basis to contend that… the Chief Executive or the government is in a position to interfere in matters that are directly and immediately relevant to the adjudicative function”.

They noted that judges are all bound by oath to discharge their duties in full accordance with the law and without fear or favour, and the judiciary – not the CE – remains in charge of assigning particular judges to any given case.

“We do not believe that a reasonable, fair-minded and well-informed observer would think that those judges are, or may be, no longer be independent of the Government.”

They also rejected the argument that the national security law is an “inaccessible” one because it is promulgated in Chinese, without an official English version.

They agreed with government arguments that other national laws applied in Hong Kong – including the Basic Law – where the Chinese text represents the authoritative version.

As such, the High Court ruled against the habeas corpus application and ordered the applicant to pay court costs for the government.

However, it said the court would make a separate consideration of whether Tong should be freed on bail, and a bail hearing has been set for Tuesday next week.

The defendant has been held in custody since early July.

Tong is accused of riding his motorcycle into a group of police officers while carrying a flag bearing the "liberate Hong Kong" slogan during a protest, and faces charges of inciting secession and engaging in terrorist activities.