HK's Top Court Sends Jimmy Lai Back To Prison

The Court of Final Appeal (CFA) on Thursday reversed the decision to allow Jimmy Lai to live under house arrest ahead of trials for an alleged national security offence and fraud, cancelling the media tycoon's bail and remanding him in custody again.

After hearing a bid by the Department of Justice (DOJ) for an appeal against the bail move, a panel of three judges ruled that a lower court may have erred in its decision on the matter.

Lai was first put behind bars on December 3, before a High Court judge released him on bail of HK$10 million on December 23, ordering him to stay at home, keep off social media and refrain from giving interviews or publishing any articles.

The DOJ tried and failed at the time to get a certificate from the High Court to appeal against the bail decision at the CFA, and on Thursday it took the matter to the city's top court directly.

Prosecutors argued that the threshold for granting bail to people accused of breaking the national security law is higher than for many other offences, just as it is for those charged with murder, for example.

They also warned that Hong Kong could not afford to see even one occasion where a defendant charged under the new law absconds, or "recommits" acts that endanger national security.

Lai's defence, meanwhile, said the lower court judge had had the objective of protecting national security firmly in mind when he dealt with the case.

It agreed that the courts can revoke bail if they see fit, but said the power to make such a decision in this instance lay with the High Court judge and there was no need for the CFA to assume jurisdiction.

After a break of several hours, the three CFA judges – outgoing chief justice Geoffrey Ma, his successor from next month Andrew Cheung, and Roberto Ribeiro – ruled that the lower court may have erred in its decision to grant Lai bail, and they remanded the tycoon in custody until a hearing scheduled for February 1.

"We consider it reasonably arguable in the present case that the learned judge may have erred in his construction or application of NSL A42(2) in adopting his approach to the granting of bail,” said Ma.

He said the court will determine the meaning of this part of the national security law and then decide whether the High Court judge had made a mistake when granting bail.

After this move by the CFA, it would be for judges of lower courts to deal with such bail decisions, Ma added.

Article 42 of the national security law states that no bail shall be granted unless the judge has sufficient grounds for believing the suspect will not "continue to commit acts endangering national security".

Following last week's High Court bail hearing the judge, Alex Lee, said media statements prosecutors claim show Lai had colluded with foreign powers by requesting intervention in Hong Kong and China's affairs appeared to be nothing more than "comments and criticisms".

Lai is one of four people charged under the national security law to date, and the only one to have been granted bail, albeit temporarily.

On Tuesday, the stock exchange was informed that the media tycoon was stepping down as chairman of Next Digital, "so as to spend more time dealing with his personal affairs".