HKSAR v Lai Chee Ying (黎智英)

Cheung CJ, Ribeiro and Fok PJJ, Chan and Stock NPJJ
Final Appeal No 1 of 2021 (Criminal)
1, 9 February 2021


On 30 June 2020, the National People’s Congress Standing Committee (the NPCSC) added the “Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” (the NSL) to the list of laws in Annex III of the Basic Law (the BL) to be applied locally by way of promulgation by the Hong Kong Special Administrative Region (the HKSAR) pursuant to art.18(2) and (3) of the BL (BL 18). The NSL was duly promulgated by the Chief Executive of the HKSAR on the same date.

The NSL was the product of a series of Explanations and Decisions given in or made by the National People’s Congress (the NPC) and the NPCSC, which variously noted concerns with respect to prolonged public order disturbances and challenges to the authority of the Central People’s Government and the HKSAR in 2019, and that the HKSAR had failed to enact legislation in accordance with art.23 of the BL, and in consideration thereof proposed steps to be taken at the national level to inter alia “safeguard national security”, identifying certain principles said to underlie those proposals.

On 12 December 2020, X was charged with one count of “collusion with a foreign country or with external elements to endanger national security”, contrary to art.29(4) of the NSL. X was refused bail in the Magistrates’ Court, but granted bail on review, subject to a number of conditions and undertakings.

The prosecution was granted leave to appeal to the Court of Final Appeal on the question of the correct interpretation of art.42(2) of the NSL (NSL 42(2)), which provides that “[n]o 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”.

Held, unanimously allowing the prosecution’s appeal, setting aside the decision to grant bail to X, that:

1) Given the special status of the NSL as a national law applied under BL 18, as well as the express reference in art.1 of the NSL to that process, Explanations and Decisions made in proceedings of the NPC and NPCSC regarding the promulgation of the NSL were relevant to the consideration of its context and purpose (Director of Immigration v Chong Fung Yuen (2001) 4 HKCFAR 211 considered). (See para.11.)

2) Having regard to the foregoing extrinsic materials, promulgation of the NSL, being the product of a Decision of the NPC, and the NPCSC’s formulation and listing of the NSL in Annex III of the BL, was done in accordance with BL 18 on the basis that national security was outside the limits of the HKSAR’s autonomy and within the purview of the Central Authorities, the Central People’s Government having an overarching responsibility for national security affairs relating to the HKSAR. There was no jurisdiction in the courts of Hong Kong to review the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL on the basis of any alleged constitutional incompatibility and, accordingly, the court had no power to hold any provision of the NSL unconstitutional or invalid as incompatible with the BL or the Hong Kong Bill of Rights (Ng Ka Ling v Director of Immigration (No 2) (1999) 2 HKCFAR 141 applied). (See paras.32, 37, 42, 70(a).)

3) However, that was not to say that human rights, freedoms and rule of law values were inapplicable. On the contrary, arts.4 and 5 of the NSL, reflecting presentations to the NPC and NPCSC, which emphasise protection and respect for human rights and adherence to rule of law values while safeguarding national security, are centrally important to the interpretation of the NSL. NSL 42(2) was intended to operate in tandem with constitutional rights, freedoms and other applicable statutory norms, including the rules governing bail in general, as part of a coherent whole, subject to any specific changes effected by NSL 42(2) (Comilang Milagros Tecson v Director of Immigration (2019) 22 HKCFAR 59 applied). (See paras.40–42, 45–47, 51, 70(c).)

4) NSL 42(2), drawing on the rules and principles of the existing bail regime insofar as they may be relevant, carves out a specific exception from the bail regime and introduces a new and more stringent threshold requirement for the grant of bail, that no bail shall be granted “unless the judge has sufficient grounds for believing that the accused will not continue to commit acts endangering national security” (Tong Ying Kit v HKSAR [2020] 4 HKLRD 382, HKSAR v Tong Ying Kit [2020] 4 HKLRD 416 overruled): (See paras.53–54, 70(b), 70(e), 74–75.)

    (i) “continue” was not to be read as implying the guilt of the accused. (See para.53(c)(i).)

    (ii) “acts endangering national security” referred to acts of that nature capable of constituting an offence under the NSL or the laws of the HKSAR safeguarding national security. (See paras.53(c)(ii), 70(d)(ii).)

    (iii) there was no burden of proof on the prosecution in relation to the “sufficient grounds” requirement; the question, as with bail generally, was a matter for the court’s evaluation and judgment (R (McCann) v Crown Court at Manchester [2003] 1 AC 787, R v Lichniak [2003] 1 AC 903, R (O) v Crown Court at Harrow [2007] 1 AC 249 applied). (See paras.67–68, 70(d)(iii).)

    (iv) when answering the “sufficient grounds” question, given the applicability of the general bail regime to the NSL, the judge should consider matters which might have a bearing on the accused’s likely conduct pending trial, such as possible bail conditions fashioned with a view to securing that the accused would not commit acts endangering national security if granted bail and the nature and seriousness of the national security offence charged. (See paras.57–63, 70(d)(i).)

5) If, having taken into account all relevant material, including the possible imposition of bail conditions, the judge had sufficient grounds to believe that the accused would not continue to commit offences endangering national security, the court should proceed to consider all other matters relevant to the grant or refusal of bail, applying the presumption in favour of bail. (See para.70(f).)

6) In granting bail to X, the Judge elided the NSL 42(2) question with discretionary considerations under s.9G of the Criminal Procedure Ordinance (Cap.221). This misapprehended the nature and effect of the threshold requirement created by NSL 42(2). (See paras.71, 78–80.)

Editorial Note: See also [2021] HKCFI 448, [2021] HKEC 554 for a subsequent Reasons for Decision concerning the respondent’s application to the Court of First Instance to review the Chief Magistrate’s refusal to grant bail.