James Wood QC reviews two recent Hong Kong judgments in which the Hong Kong High Court interpreted the Law of the Peoples Republic of China on Safeguarding National Security in Hong Special Administrative Region (known as a the “NSL”). In a week during which Lord Sumption was sitting in the Hong Kong Court of Final Appeal (HKCFA) , the High Court did not mince its words in  robustly rejecting applications for bail and Habeas Corpus, although the possibility of a challenge to the HKSC on grounds that the NSL was incompatible with the Hong Kong Basic Law was hinted at.  

It was on the 30th June 2020 that the much publicized Law of the People’s Republic of China on Safeguarding National Security in Hong Kong Special Administrative Region (“NSL’) came into force. The very next day Tong Ying-kit a 23 year old protester was arrested and charged under articles 20 and 21 after riding his motorcycle around a demonstration whilst displaying a flag with the motto “Liberate Hong Kong Revolution of our Times”. Articles 20 and 21 carry life imprisonment and are made out if by so doing he “incited other persons to organize, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification”. Having been surrounded by HK police, he sought to ride away, and so was also charged under article 24 (which also carries life imprisonment) with “causing serious injury to three officers with a view to coercing  the Central Peoples Government or the HK Government, or intimidating the public in order to pursue political agenda, committed terrorist activities causing or intended to cause grave harm to society, namely serious violence against persons, or other dangerous activities which seriously jeopardized public safety or security”.

Having been denied bail by the Chief Magistrate of West Kowloon, his lawyers sought to challenge the provisions of the NSL by way of application for Habeas Corpus, and on bail appeal to the High Court. In separate recent judgments on the 21st August  [2020] HKCFI 2133 (Hon Chow and Alex Lee JJ) (Habeas Corpus) and the 25th August [2020] HKCFI 2196 (Hon Alex Lee J) (Bail) the High Court rejected all arguments, but in doing so exposed some of the appalling abuses and denial of rights to which Hong Kong citizens will now be subject should they seek to exercise rights of protest, or campaign for greater independence for Hong Kong.

In the Habeas Corpus proceedings the first challenge related to Article 42 of the NSL which reverses the presumption in favour of bail which normally applies. In criminal proceedings. Art 42 provides that when applying the act the “.. judicial authorities….shall ensure that cases concerning ….national security are handled…so as to…prevent, suppress and impose punishment…No bail shall be granted to a… defendant unless the judge has sufficient grounds for believing that the …defendant will not continue to commit acts endangering national security”.

Other arguments advanced contended that the imposition of mandatory minimum terms for offences under articles 20, 21 and 24, and that the requirement in Article 44 concerning the appointment of specialist judges, rendered the law ultra vires the Basic Law of Hong Kong.

The court rejected the article 42 challenge on the basis it did not create a presumption of guilt by use of the word “Continue”, and the reversal of the burden is a narrow one, presenting no absolute prohibition on bail (per paras 31-49).

Arguments of interference with judicial independence contained in article 44 were similarly brushed away (paras 51-64).

The existence of minimum terms of 10 years for “principle offenders” (Article 20(2)), or those causing serious injury, or significant loss to public or private property ((article 24(2) and 3 years for “active participants” (Article 20(2)) where considered unobjectionable (per paras 65-68).

In the subsequent bail hearing whilst relying on much of the reasoning in the Habeas Corpus ruling Lee J distinguished himself by redacting from public consumption all of his reasons for refusing bail at paragraphs 20-31, save that (at para 18) he contended  that the “NSL…does not introduce any drastic or significant changes to the existing law and practice regarding bail applications”.

At para 26 of the Habeas Corpus judgment there was an important flagging of the key constitutional challenge which may yet arise on the validity of the NSL where it is in conflict with the Basic law of Hong Kong. The court stated:

 “The question of the relative status of the Basic Law and the National Security Law, and how any inconsistency between the two which cannot be resolved by applying ordinary techniques of statutory interpretation should be dealt with by the court, is a question of fundamental importance. In this respect, although Article 62 (of the NSL) states that “[t]his law shall prevail where provisions of the local laws of the Hong Kong Special Administrative Region are inconsistent with this Law”, the answer to the question of whether the reference to “local laws” included the Basic Law was, understandably, left open by Mr Yu on the basis this question did not arise for determination in the present case. Since the disposition of the present application does not require a determination of this important question, we would leave it for future consideration should it become necessary to do so.”

Whilst the court brushed the issue away, in a week that  Lord Sumption sat in the HKCFA, a full throttle attack on the constitutional compatibility of the NSL with the Hong Kong “Basic Law” may yet see international judges sitting in the HKSC dealing with the basic compatibility of this apparently repressive legislation. As Lord Reed (President of the UK Supreme Court) stated on the 17th July

The new security law contains a number of provisions which give rise to concerns. Its effect will depend upon how it is applied in practice. That remains to be seen. Undoubtedly, the judges of the Court of Final Appeal will do their utmost to uphold the guarantee in Article 85 of the Hong Kong Basic Law that 'the Courts of the Hong Kong Special Administrative Region shall exercise judicial power independently, free from any interference.' As the Chief Justice of Hong Kong, the Hon Geoffrey Ma, recently said: 'The independence of the Judiciary and the rule of law are cornerstones of the Hong Kong community, and they are guaranteed under the Basic Law. It remains the mission and the constitutional duty of the Hong Kong Judiciary to maintain and protect them.' 

Only time will tell whether they are still permitted to do so, when the challenge is finally comes to be made.

To access Tong Ying Kit and HKSAR [2020] HKCFI 2133 click here, and for HKSAR and Tong Ying kit [2020] HKCFI 2196 click here.

From historic and celebrated miscarriages of justice to complex forensic science cases and fresh evidence appeals, throughout his long career James has been involved in numerous appeal cases in the UK and abroad. Determination, persistence and hard work are, he believes, the ultimate keys to his success. This has recently been illustrated by the CCRC referral back to the Court of Appeal, after almost 15 years of work by all involved, of the murder case of his long standing and still, he believes, wrongly convicted client, Lee Firkins.

To see Jame’s full profile, click here.

This was a featured article in Doughty Street Chambers Appeals Bulletin.

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