The Court of Final Appeal has reserved judgement in an appeal case regarding media tycoon Jimmy Lai, and the Apple Daily founder has been remanded in custody again.
The top court held a hearing on Monday to deal with the government’s appeal against a lower court decision to grant bail to Lai, who is accused of colluding with foreign forces under the national security law.
The appeal was heard by Chief Justice Andrew Cheung, and judges Roberto Ribeiro, Joseph Fok, Patrick Chan, and Frank Stock.
They were told by prosecutors that the default position for suspected national security law violations is that no bail should be granted to defendants.
But a defence lawyer representing the media mogul argued that in deciding whether to grant bail, the court must also take into account important principles such as the presumption of innocence and right to liberty.
Senior Assistant Director of Public Prosecutions, Anthony Chau, told the court that the crux of the matter lies in the correct understanding of Article 42 of the national security law, which stipulates that no bail shall be granted unless the judge has sufficient grounds to believe that the defendant will "not continue to commit acts endangering national security".
The prosecutor stressed that unlike in other criminal proceedings, the default position for the national security law is that no bail should be granted.
Chau said judges should make a determination on whether the suspect could "continue endangering national security" based on objective and reasonable evidence, adding that it would be inappropriate for them to mitigate the risk of further violations by imposing extra bail conditions.
However, Lai’s lawyer, senior counsel Stewart Wong, argued that Chau was “completely wrong” to suggest judges cannot consider bail at all.
He said if the court is convinced that the conditions set out will deter the defendant from committing "further violations", then that should serve as a good enough reason for the judge to grant bail.
Wong added that based on the principles of presumption of innocence and the right to liberty as stipulated in the International Covenant on Civil and Political Rights, it is the prosecution’s responsibility to prove that the defendant, if released, would pose a threat to national security.
Lai was released from detention on bail of HK$10 million on December 23 last year and placed under house arrest. The Apple Daily founder was also ordered by the High Court not to engage in media interviews or social media postings.
However, the Department of Justice sought leave to appeal against the bail move, saying the original judge had erred in his decision.
Prosecutors argued that the responsibility to protect national security is of paramount importance, and those suspected of breaching the Beijing-imposed law should be denied bail the same way someone charged with murder would be.
The Court of Final Appeal granted leave for the appeal application on December 31 last year, and revoked Lai's house arrest at the same time.
Last updated: 2021-02-01 HKT 17:15