Bail is not a privilege, it is a right

After an arduous marathon bail trial which spanned four days, 15 out of 47 Hong Kong Opposition Figures charged with subversion of state power under the National Security Law (NSL) were ultimately granted bail by NSL-designated judge Victor So Wai-tak. However, the decision by the Department of Justice to appeal the bail decision meant that those who had successfully applied for bail were reprimanded in custody nonetheless, pending appeal to the High Court.

The bail hearings provided lawyers and citizens alike with a first glimpse into the extremely tough bars for bail applications for persons charged under the NSL. Unlike the common law system which provides for a “presumption of bail”, where the courts will prima facie (accepted unless proven otherwise) grant bail unless of exceptional circumstances, the NSL states that “no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” Hence, many defendants charged under the NSL, including Apple Daily media tycoon Jimmy Lai, have failed to apply for bail.

What does this mean? This means that defendants are kept in custody up to months even before their case goes to trial. It goes against the Hong Kong Bill of Rights Ordinance (Section 5(3)) which enables the right to bail and to be heard promptly before a judge. It contradicts long-standing criminal law principles such as a presumption of innocence which assumes that suspects are innocent until proven guilty.

The logistics of the trial was also heavily criticised. Formally charged on the 28th of February, some of the defendants were only given food until 10pm on the 1st of March. The proceedings went late into the night until 3am, only for defendant and district councillor Clarisse Yeung Suet-Ying to faint and be taken to the hospital. Three other defendants also reported feelings unwell and were taken to the hospital. However, after departing for their cells at around 5am, they were brought back to court within a few hours at around 9am to continue the proceedings. The defendants were also unable to bathe nor change for 3 days.

It is chilling how little regard was given to accommodating the defendants’ needs in this case. Bail has and should be an inherent right, not one to be exchanged for through strict conditions including ceasing to communicate with outsiders or make political statements. What we can do, is to stay aware of what is happening and not to live in ignorance. We are all a part of Hong Kong.

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