Hong Kong, China – Last March, former journalist Gwyneth Ho told a Hong Kong magistrate that she would accept curfew and other restrictions if she was released from prison before the trial.
Ho was a politician for the first time, a little tired of the world, when he joined a civil society vote last July to select candidates to run on the pro-democracy list in the country’s legislature.
A few months later, the 31-year-old man was among the dozens wanted in a national security case when prosecutors accused the group of trying to overthrow the government.
In court a few days after his arrest, Ho sought bail before the trial.
She told Magistrate Victor So that she had read the original Chinese text of the national security law, along with several decisions by Hong Kong courts, and also considered the arguments of several of her 46 co-defendants.
“I still cannot distinguish or find out what guarantee conditions guarantee that a person will not violate the National Security Act again,” she said at a hearing on February 28 last year. So he rejected her request and despite other requests for bail, she has been behind bars ever since.
In his argument, Ho raised one of the most pressing issues facing Hong Kong’s legal system now: Who gets bail and what are the standards used to win an exemption?
After the mass protests for democracy in 2019 and the imposition of the National Security Act (NSL) by China a year later, the accused in the territory can no longer assume that they will remain at large 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.”
According to the National Security Act, which entered into force on June 30, 2020, obtaining a guarantee has become more burdensome. Defendants accused of rioting, subversion, terrorism and collusion with foreign forces must prove that “they will not continue to commit acts threatening national security.”
The language of the law, scientists say, suggests the accused are guilty.
Almost all NSL defendants have been denied bail, even on appeal. The magistrates cited the prosecutor’s arguments that the accused were influential, “decisive” and “decisive” in their policies or actions.
Veteran MP Claudia Moe, one of Ho’s co-accusers, failed to win in part because she criticized the NSL to reporters before the law was passed, although authorities stressed that the law would not have retroactive effect. Her colleague Jeremy Tam was being held in prison after prosecutors noted that US consulate officials had invited him to a meeting, although Tam did not accept.
“Determined and determined”
The most famous NSL defendant, who was given bail and then denied bail, is media mogul Jimmy Lai.
Now serving more than a year in prison for joining peaceful protests in 2019 and 2020, the founder of the hugely popular but now defunct Apple Daily faces charges of rioting and “colluding with foreign agents.”
Prosecutors say he and several former editors have called on the United States and other governments to sanction Chinese and Hong Kong officials over security laws.
A magistrate allowed him to be released on bail at the end of 2020 under strict conditions: effective house arrest without the use of social media and without permitted interviews. For the prosecution, even these restrictions were not enough. The government appealed and Lai’s bail was revoked.
When Lai tried to overturn that decision, the city’s highest court ruled that a defendant “who is determined and determined may be more inclined to commit forbidden acts than one who simply moves forward and lacks one.” enthusiasm. “
Lai, now 74, has been returned to his cell.
The consequences of the guarantee fiasco were worrying for lawyer Johannes Chan. The former dean of Hong Kong University’s law school said he was concerned that waiving bail had become a form of punishment in itself.
Following the Court of Appeal’s ruling on Lai, Chan wrote in an article in the Hong Kong Law Journal published in May 2021 that the ruling “could encourage arbitrary arrest for national security crimes, not so much as a sentence, but simply to guarantees that the accused will be imprisoned for a long period of time before a trial. “
The reasoning applied in Lai’s decision has become a standard cited by judges to deny bail in other security cases. The decision was recently used to imprison a woman legally accused in the colonial era.
The December 2021 decision of the city’s highest court ruled that rioting, an old crime found in other common law jurisdictions, was essentially a security crime and therefore release decisions should be seen as other national security cases. .
In making this argument, the judges denied the guarantee of speech therapist Sidney Howe I Ng. She has been accused of trying to “provoke hatred or contempt or discontent” against the government over a series of illustrated children’s books, including insolent cartoon sheep confronting a group of wolves.
Meanwhile, Ho’s case continues.
She continued to push for her bail as she and the other defendants prepared to face charges punishable by five to 10 years in prison.
Again asking for Ho to be released before the trial, one of Ho’s lawyers read her statement in court last September. “It is artificial to say to the extreme that the Court cannot be satisfied [with] the negative test that the defendant will not commit acts endangering national security, when the content of these acts has never been clearly identified, “she wrote. “The court must also avoid effective discrimination against persons with opposition political views in the application of the NSL test, as criticism of the government is far from being a criminal or a threat to national security.
No trial date has been set.