Court To Rule On Habeas Corpus Writ On Friday

The High Court is set to rule on Friday whether the first man charged under the new national security law is being detained lawfully, as defence argued if the burden of proof doesn't fall on the prosecution, it risks arbitrary detention.

Tong Ying-kit has been held in custody since his arrest on July 1.

He's 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.

Lawyers for the defendant had filed a writ of habeus corpus – asking the authorities to prove that he is being held lawfully.

Article 42 of the national security law states that suspects can't be granted bail unless the court is satisfied that they will not commit any further acts that endanger national security.

But Senior Counsel Philip Dykes argued that the article essentially denies bail to anyone, and lifting the burden of proof from the prosecution – as required under common law – risks allowing arbitrary detention.

His team argued that it would be unfair to require Tong to promise to stop endangering national security to secure his release, saying this does not comply with the legal principle of the presumption of innocence.

But Justice Alex Lee disagreed, saying the court doesn't have to presume an act has been done in the first place, and that granting of bail is based on risk assessment.

Senior counsel Benjamin Yu, for the prosecution, said the habeus corpus application is itself improper, saying the defendant's detention cannot be unlawful since it was approved by a magistrate.