Violence Against Speakers / Impunity
Restrepo Barrientos v. El Colombiano Newspaper
Closed Mixed Outcome
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The Court of Final Appeal of the Hong Kong Special Administrative Region (HKSAR) refused to grant bail to founder and owner of pro-democracy tabloid Apple Daily, Lai Chee Ying, popularly known as Jimmy Lai, who was charged with an offence under the National Security Law, 2020 (NSL). On December 12, 2020, Jimmy Lai was charged under Article 29(4) of the NSL which criminalises “colluding with a foreign country or with external elements to endanger national security” for having called upon foreign governments, through articles, interviews and tweets, to impose sanctions on the governments of HKSAR and China, in response to the implementation of the controversial NSL. Around the same time as when Jimmy Lai made public statements calling for sanctions, the United States passed a legislation imposing financial sanctions on officials of China and the HKSAR. While the Chief Magistrate initially refused to grant bail to Jimmy Lai, this decision was overturned by the High Court of HKSAR, Court of First Instance on December 23, 2020, and Lai was granted bail subject to a series of conditions. These conditions included prohibitions on publishing any articles, writing any posts on social media or attending or hosting any interviews, television, radio or online programmes. However, the Court of Final Appeal set aside the High Court’s decision, finding that the High Court had erroneously interpreted Article 42(2) of the NSL. It held that given the context and purpose of the NSL, Article 42(2) establishes a more stringent threshold for bail applications, in exception to the general principles of bail as per HKSAR’s general law.
Lai Chee Ying alias Jimmy Lai, founder and owner of pro-democracy tabloid Apple Daily, was charged under Article 29(4) of the National Security Law (NSL) for “collusion with a foreign country or with external elements to endanger national security” [para. 2]. The charge particularly alleged that between July 1, 2020 and December 1, 2020, Jimmy Lai had requested a foreign country, institution, organization or individual outside the vicinities of Hong Kong, Macau and China to impose sanctions or blockade, or to engage in hostile activities against HKSAR or China. The High Court of HKSAR, the Court of First Instance had clarified that the charge against Jimmy Lai was based on what the Petitioner had said in articles published in Apple Daily, in interviews with various overseas media and in Twitter posts which allegedly led to the United States passing legislation imposing financial sanctions on officials of China and the HKSAR.
The accused first approached the Chief Magistrate for bail. The Chief Magistrate, taking into account the nature and seriousness of the alleged offence, refused bail to the accused and remanded him back to custody. The Chief Magistrate was of the opinion that there “were substantial grounds to believe that the accused would fail to surrender to custody or commit an offence while on bail” [para. 3]. On December 23, 2020, the High Court overturned this decision and granted Jimmy Lai bail subject to the imposition of a series of conditions including that Lai would exclusively reside at his home, surrender his passport and other travel documents and refrain from attending any interviews, publish any articles or make any posts or comments on social media platforms. The prosecution, consisting of HKSAR’s Department of Justice, preferred an appeal, and sought the Court of Final Appeal’s ruling on the correct interpretation of Article 42(2) of the NSL, which is the provision that lays down the principle for bail under the NSL.
An appeal was preferred, against the High Court’s decision in this regard, and was allowed by the Court of Final Appeal.
The court delivered a per curiam decision. A five-judge bench of the Court of Final Appeal delivered a unanimous judgment overruling the bail granted to Jimmy Lai.
The main issue before the Court was concerning the interpretation of Article 42(2) of the National Security Law (NSL 42(2)) which governs the grant of bail to persons charged with offences under the NSL.
NSL 42(2) provides 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.” The Court highlighted that the general laws of HKSAR governing bail and other procedural matters will apply in respect of offences endangering national security, as enunciated in Article 41(1) of NSL, subject to the specific modifications effectuated by Article 42(2), and in case of any inconsistencies, NSL would prevail over the general laws of HKSAR, as provided for by Article 62. Thus, NSL 42(2) creates a specific exception to the general rules and principles applicable in HKSAR, and imports a more stringent threshold requirement for granting bail.
In analyzing the stringent threshold requirements to be met for granting bail under NSL 42(2) for offences endangering national security, the court held that it must apply the ‘sufficient grounds’ test. Having regard to all relevant materials, if the court concludes that no sufficient grounds exist for them to believe that the accused will not continue to commit acts that endanger national security, the bail application would be denied. As such, NSL 42(2) departs from the standard burden of proof requirement under criminal law. In reaching a conclusion, the court must consider everything that appears to be relevant including, “including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial” [para. 70 (d) (i)].
However, if the court, having taken account of all relevant materials, believes that there do exist sufficient grounds that the accused will not continue to commit acts that endanger national security, only then should the judge proceed to consider all other materials relevant to the grant or refusal of bail, applying the presumption in favour of bail. These final set of considerations would include grounds for believing that the accused would not fail to surrender to custody, or commit an offence (not limited to offences under the NSL) while on bail, or interfere with a witness or obstruct the course of justice [para. 70 (f)].
However, the Court affirmed that even while applying this stringent threshold requirement for bail applications, NSL 42(2) had to be construed in accordance with the rights set out in Articles 4 and 5 of the NSL, which provide for the guarantees of human rights and rule of law respectively. Article 4 of the NSL explicitly states that “the rights and freedoms, including the freedom of speech, of the press, of publication, of association, of assembly, of procession and demonstration, which the residents of the Region enjoy under the Basic Law of the Hong Kong Special Administrative Region and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.” Thus, while placing reliance on its decision in Comilang Milagros Tecson v. Director of Immigration, 22 HKCFAR 59 (2019) the court held that as far as possible, the specific exception incorporated within NSL 42(2) must be given a meaning and effect that is in congruence with these “constitutional rights and freedoms and other applicable statutory norms as part of a coherent whole” [para. 42].
The Court of Final Appeal thereafter held that while the High Court had “purported to apply the correct legal test” [para. 80] under NSL 42(2), it had adopted an erroneous approach in its interpretation, while granting bail to Jimmy Lai.
Instead of conforming to the “double negative” requirement of NSL 42(2) (i.e. no bail to be granted unless the Court has sufficient grounds to believe that the accused will not commit acts endangering national security), the High Court had erroneously imported a “positive requirement” that bail is to be granted unless there are sufficient grounds to believe that the accused will continue to commit acts endangering national security. As such, the Court of First Appeal held that the High Court had watered down the stringent threshold requirement of NSL 42(2), and in doing so had erred in granting the accused bail.
Thus, the Court of Final Appeal by applying this stringent threshold requirement necessitated by NSL 42(2), set aside the bail granted to Jimmy Lai by the High Court and remanded him back to custody. However the Court held that Jimmy Lai was free to make a fresh application for a review of the Chief Magistrate’s judgment refusing bail, since such review was outside the Court of First Appeal’s jurisdiction in the present matter.
Decision Direction indicates whether the decision expands or contracts expression based on an analysis of the case.
The judgment interprets NSL 42(2) in a manner, so as to give wide discretionary powers to the Courts, while deciding bail applications, of accused persons charged with an offence under the NSL. Courts can examine all relevant material, including material otherwise not admissible at trial, in order to set out whether “sufficient grounds” exist to believe that an accused will or will not continue to commit acts that endangered national security. The application of the “sufficient grounds” test as opposed to the “burden of proof” test, leaves a lot of room for journalists being incarcerated for long periods of time, for their reporting. Stringent threshold requirements for bail in effect means that the threshold requirements for arresting journalists and keeping them imprisoned, are fairly low.
However, at the same time, the Court laid down that the specific exception re: stringent threshold requirements created by NSL 42(2) have to operate in tandem with the guarantees of constitutional human rights, freedoms and the rule of law, which include freedom of speech, of the press, of publication, of association, of assembly, of procession and demonstration.
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