Hong Kong, China Last March, former journalist Gwyneth Ho told a Hong Kong magistrate that she would accept a curfew and other restrictions if she was released from prison before her trial.
Ho was a first-time politician, a little world-tired, when she joined a civil society vote last July to select candidates to stand on the pro-democracy page in the area’s Legislature.
A few months later, the 31-year-old was among dozens swept in a national security case when prosecutors accused the group of trying to overthrow the area’s government.
Ho tried to secure bail before the trial a few days after her arrest.
She told Magistrate Victor So that she had read the original Chinese text of the National Security Act, along with several rulings by the Hong Kong courts, and also considered the arguments of several of her 46 co-accused.
“I still can not discern or discover what bail conditions ensure that a person will not violate the National Security Act again,” she said at a hearing on February 28 last year. So her petition was denied and despite other bail requests, she has been behind bars ever since.
In her speech, Ho raised one of the most pressing issues facing Hong Kong’s legal system at present: Who gets bail and what are the standards used to get release?
Since the mass democracy protests of 2019, and China’s imposition of the National Security Act (NSL) the following year, defendants in the area can no longer accept that they will remain free while awaiting trial.
Decisions to grant bail, however, have been inconsistent.
Judges have denied applications by first-time offenders charged with rioting, but granted them to others with conditions. Some longtime activists charged with security crimes have been released pending trial, while some of their peers have been repeatedly denied. Some defendants who managed to win bail include students, veteran dissidents, and young people caught in their first arrest. Those who failed are likewise students, veteran activists, and young first-timers.
“Pre-trial detention has been a major area of abuse by the Hong Kong government since the NSL went into effect,” Thomas E Kellogg, executive director of the Center for Asian Law at Georgetown University in Washington, DC, wrote in December. The city’s highest court, in a recent ruling, “chose the option that restricts due process rights”, he said.
‘Assumed as criminals’
It is a common law principle that courts treat all defendants as innocent until they are proven guilty. As a former British colony that bases its rulings on other common law cases, Hong Kong once routinely granted bail, even to government critics. The 2019 democracy protests changed that, as did the NSL, passed by lawmakers in Beijing.
The government is prosecuting more than 2,700 people for offences related to the protests. Hundreds of defendants arrested both in 2019 and since the beginning of the NSL era have spent months – some even more than a year – in jail awaiting trial. The Hong Kong government has said it does not release data on the number of defendants granted bail or remanded in custody pending trial.
Many of the 47 activists and politicians arrested under the law for planning the primary are due back in court for a pre-trial hearing on January 27.
Asked about changes in bail orders, a spokesperson for the justice secretary told Al Jazeera that the Department of Justice does not comment on individual cases.
“In general, the prosecution, in deciding whether to oppose bail in each case, will consider all the relevant factors including the nature and the seriousness of the offence and whether there are substantial grounds for believing that the defendant would abscond or commit an offence whilst on bail,” the spokesperson said in an email.
Before the NSL, bail was expected and granted — provided that prosecutors could not prove defendants would interfere with the case or try to flee. It was not for defendants to prove that they would not pose a risk.
In 2019, when more than 700 people were charged with rioting during months of mass democracy protests, prosecutors began to insist that many defendants be detained before trial.
In several cases, judges ordered that some defendants be held when others jumped bail. In many cases, it was not clear to the public why people were being kept in detention. Under Hong Kong law, reporters are barred from publishing details of bail proceedings beyond the barest of facts.
Bail conditions also became more stringent during and after the protests. Defendants have been ordered to surrender passports, abide by nightly curfews, and report to police stations multiple times each week.
“When bail conditions are stricter,” Georgetown University’s Eric Lai told Al Jazeera, “it’s a way to change the whole culture in the court, a development that these people are already assumed as criminals.”
Under the National Security Act, which came into force on 30 June 2020, obtaining bail has become more cumbersome. Defendants accused of rioting, undermining, terrorism and collusion with foreign forces must prove that they “will not continue to commit acts that endanger national security”.
The language of the law, scholars say, assumes that those charged are guilty.
Almost all NSL accused were denied bail, even on appeal. Magistrates cited prosecutors’ arguments that the accused were influential, “determined” and “determined” in their politics or actions.
Veteran lawmaker Claudia Mo, one of Ho’s co-accused, failed in part to get release because she criticized the NSL to reporters before the law was passed, even though authorities stressed the legislation would not be retroactive. . Her colleague Jeremy Tam was jailed after prosecutors noted that U.S. consulate officials had invited him to a meeting, even though Tam did not accept it.
‘Decisive and determined’
The most prominent NSL accused granted and then denied bail is media mogul Jimmy Lai.
The founder of the hugely popular but now disbanded Apple Daily newspaper, who is now serving more than a year in prison for taking part in peaceful protests in 2019 and 2020, is facing charges of rioting and “collusion with foreign agents”.
Prosecutors say he and several of his former editors have called on the US and other governments to sanction officials from China and Hong Kong over the security law.
One magistrate allowed him bail in late 2020 under strict conditions: effective house arrest with no use of social media and no interviews allowed. For the prosecution, even those restrictions were not enough. The government appealed, and Lai’s bail was withdrawn.
When Lai tried to reverse that decision, the city’s Supreme Court ruled that a defendant “who is determined and determined can more easily be inclined to commit the forbidden deeds than someone who simply wanders around and does not have such enthusiasm. ”.
Lai, who is now 74, was returned to his cell.
The implications of the bail fiasco were of concern to jurist John Chan. The former dean of the University of Hong Kong’s law school said he was concerned that the denial of bail had in itself become a form of punishment.
Following the Court of Appeal’s ruling on Lai, Chan wrote in a Hong Kong Law Journal article published in May 2021 that the decision ‘could encourage a practice of arbitrary arrest for national security offenses, not so much for a conviction. , but only to ensure that the accused will be locked up for a long period before the trial. ”
The reasoning applied in Lai’s ruling has become a standard cited by judges to deny bail in other security cases. Recently, the verdict was used to keep a woman in jail charged under a colonial-era law.
The December 2021 decision by the city’s Supreme Court ruled that rioting, an old crime that occurs in other common law jurisdictions, is essentially a security crime and therefore bail decisions should be handled like other national security cases.
With the argument, the judges denied bail to speech therapist, Sidney Hau Yi Ng. She is charged with an attempt to “bring hatred or contempt or to arouse discontent” against the government over a series of illustrated children’s books in which sly cartoons confront a group of wolves.
Ho’s case continues to grind in the meantime.
She continued to argue for her bail while she and the other defendants prepared to face charges that would result in a sentence of five to 10 years in prison.
Asking again for Ho to be released before trial, one of Ho’s lawyers read her statement in court last September. “It is extremely artificial to say that the court can not be satisfied [with] the negative test that a defendant will not commit acts that endanger national security, when the content of such acts has never been clearly identified, ”she wrote. “The court must also avoid effectively discriminating against persons with opposition political views in its application of the NSL test, as it is far from a criminal or national security threat to be critical of the government.”
No date has been set for the trial.