The Court of Final Appeal on Tuesday upheld a government challenge to a lower court's decision to grant bail to the media tycoon Jimmy Lai as he awaits trial on a charge of colluding with foreign forces under the national security law.
The case was seen as a key test of a provision in the legislation that states judges should not grant bail to those charged with national security offences unless they are satisfied that the defendant will no longer carry out acts that threaten national security.
The top court ruled that a Court of Appeal judge who granted Lai bail in December "misconstrued" a clause of the national security legislation relating to bail. It said Lai would be able to launch a new appeal against a magistrate's original decision to deny him bail, but would be remanded in custody pending that application.
"Although he purported to apply the correct legal test, his Lordship in fact adopted an erroneous approach," by merging consideration of the national security law provisions on bail with criminal legislation, wrote Chief Justice Andrew Cheung, and judges Roberto Ribeiro, Joseph Fok, Patrick Chan, and Frank Stock.
The top court found that the lower court's Judge Alex Lee had wrongly translated what it called the "double negative" requirement of Article 42 of the national security law.
They said that the lower court had required prosecutors to show that the defendant would threaten national security to deny bail, in a similar way to how bail is considered in most criminal cases. In fact, they said, the presumption should be not to grant bail.
However, the ruling said that judges considering bail could take into account conditions imposed for bail with the intent of preventing defendants from endangering national security. Prosecutors had argued that it would be inappropriate to mitigate the risk of further offending by imposing extra bail conditions.
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. The Court of Final Appeal granted leave for the appeal application on December 31 last year, and ordered Lai's return to prison pending the hearing.
Last updated: 2021-02-09 HKT 10:37