The Application of the Bail System in Hong Kong under the Operation of the Hong Kong National Security Law

The Concept of Bail

We very often see news about "posting bail," with the general understanding being that the defendant pays a certain amount of money to be released from detention—which indeed is the mechanism of bail. In legal terms, provisions concerning bail are explicitly stipulated in the Code of Criminal Procedure. But what is the legal meaning of bail, and does bail hold a similar significance in other countries?

Looking at the fundamental aspect of detention, the purpose of enforcing detention is not to punish the defendant's criminal conduct, but to preserve evidence to ensure that future judicial proceedings can proceed smoothly. Otherwise, it would constitute a severe infringement upon the defendant's human rights and violate the presumption of innocence. Furthermore, personal liberty is the most fundamental human right. State organs shall not arbitrarily deprive people of their liberty without legal grounds and due process of law. Moreover, before a defendant is convicted by a final court judgment, they shall be presumed innocent. If state organs were to arbitrarily restrict the physical freedom of a defendant when statutory grounds for detention do not exist, it would undoubtedly constitute an infringement upon the defendant's rights. Therefore, the implementation of a bail system effectively ensures that defendants can be released from detention at an early date, safeguarding their freedom.

Within criminal judicial proceedings, when a defendant or criminal suspect has been detained or arrested, and prosecutors and judges—after questioning—find that the defendant or suspect meets the legal grounds for detention but that detention is unnecessary, prosecutors and judges may order the defendant to post bail. This usually involves paying a specific amount of bail money in order to suspend the state of detention.

Many countries around the world have alternatives to detention similar to Taiwan's "posting bail." Of particular note is the issue of "bail" in Hong Kong. In Hong Kong, posting bail is referred to as "bail." Section 9C of the Criminal Procedure Ordinance defines bail as: "the release from custody of a person on that person undertaking to surrender to custody on the date and at the time and place appointed by the court."

Background of the Bail System

Before the Hong Kong National Security Law was passed by the Standing Committee of the National People's Congress on June 30, 2020, Hong Kong's legal system was primarily influenced by early British rule, adopting the common law system in principle. Both the Chinese and British sides promised in the Sino-British Joint Declaration that: "The Hong Kong Special Administrative Region shall be vested with executive, legislative and independent judicial power, including that of final adjudication. The laws currently in force in Hong Kong will remain basic unchanged." Operating under the Anglo-American legal system, the application of both common law and equity can frequently be seen in judgments within the Hong Kong region. Through historical accumulation, precedents set by judges have formed numerous unwritten legal principles, intertwining into an increasingly comprehensive common law system.

Following the handover to mainland China in July 1997 and the implementation of "One Country, Two Systems," the highest-ranking law in Hong Kong is the Basic Law of the Hong Kong Special Administrative Region of the People's Republic of China (referred to as the Basic Law of Hong Kong). This law was formulated in accordance with Article 31 of the Constitution of the People's Republic of China, which states: "The State may establish special administrative regions when necessary. The systems to be instituted in special administrative regions shall be prescribed by law enacted by the National People's Congress in the light of the specific conditions." As a common law legal system within a special administrative region, Hong Kong differs in essence and philosophy from the central legal system of mainland China. Consequently, differences in application easily arise in legal interpretation, with the bail system being one such area.

Differences in Bail Conditions between the Criminal Procedure Ordinance and the Hong Kong National Security Law

In Hong Kong, the bail systems under the Criminal Procedure Ordinance and the Hong Kong National Security Law differ significantly. According to Article 9J(1) of the Criminal Procedure Ordinance: "Where a District Court judge or a magistrate has refused to admit a person to bail or has admitted a person to bail but subject to any conditions, that person may apply to a judge for admission to bail (in the case of a refusal of bail), or for admission to bail without being subject to that condition (in the case of having been admitted to bail subject to conditions)." Furthermore, if a District Court judge or magistrate refuses a defendant bail, the defendant may re-apply for bail to a judge. Any defendant who is refused bail after appearing in court has the right to appear in court every 8 days to request the magistrate to reconsider and review their bail application. The establishment of the 8-day bail system is designed to safeguard the rights of the defendant; for instance, if the evidence related to the case changes within a certain period, the grounds that previously hindered the defendant from obtaining bail may change, making it possible to be granted bail through a bail review or upon re-application.

On the other hand, Article 42, paragraph 2 of the Hong Kong National Security Law stipulates regarding bail: "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." Its phrasing starts from the premise of restricting the bail rights of the defendant, running counter to the original rule-of-law connotation of the bail system. It can be observed that when the Hong Kong National Security Law was legislated, it may have adopted a presumption of guilt, which is unfavorable to defendants and makes it difficult for their bail applications to succeed.

Opposing Bail Principles between the Criminal Procedure Ordinance and the Hong Kong National Security Law

The original provisions of the Criminal Procedure Ordinance mostly followed the "principle of freedom of bail" in Hong Kong common law. Under the jurisprudence of the presumption of innocence, bail is a right of the defendant, and the court generally adopts principles favorable to the defendant's bail. However, the situation under the Hong Kong National Security Law excludes this presumption, shifting instead to the "principle of prudent bail." Yet this does not entirely overturn the presumption of innocence; rather, the court must also consider all relevant factors—including any bail conditions that may be imposed, as well as materials that might not be admitted as evidence—before making a determination to grant bail. (Placed in infographics)

In addition, "acts endangering national security" are not limited to crimes under the Hong Kong National Security Law, but also include offenses under all laws of Hong Kong. Finally, judges should regard the "sufficient grounds" referred to in the provisions of the Hong Kong National Security Law as the basis for evaluation and judgment. Therefore, the burden of proof rules that generally fall upon the prosecution do not apply, and a "reverse onus of proof" may even arise.

Flaws in the Hong Kong Bail System

The Hong Kong National Security Law and the Criminal Procedure Ordinance have their respective bail provisions, yet they are difficult to distinguish in application. In December 2020, Jimmy Chee-Ying Lai (黎智英), founder of Next Digital, was charged with colluding with foreign or external forces to endanger national security under Article 29 of the Hong Kong National Security Law. A High Court judge accepted Lai's bail application based on the bail provisions of the Criminal Procedure Ordinance, stating in the judgment that: "In the vast majority of cases, if a defendant is granted bail under the Criminal Procedure Ordinance, similarly, under circumstances where bail can be granted pursuant to the National Security Law, the person may continue to be granted bail, and vice versa. The reason is that, under the Criminal Procedure Ordinance, one of the grounds for refusing bail is that there are substantial grounds for believing that the defendant will commit an offense while on bail. If a judge intends to grant bail, with or without conditions, this generally indicates that the judge does not believe there are substantial grounds for believing that the defendant will commit an offense while on bail. And this consideration must now necessarily include serious offenses endangering national security by nature. When a judge does not believe that there are substantial grounds for believing that, if granted bail, the defendant will commit offenses endangering national security while on bail, there is no reason to refuse bail under the National Security Law." The Department of Justice disagreed with the bail decision and appealed to the Court of Final Appeal. Five permanent judges of the Court of Final Appeal interpreted the text of the Hong Kong National Security Law and the Criminal Procedure Ordinance, holding that the starting points of the two are different. According to the Criminal Procedure Ordinance, the court may refuse a defendant's bail application if it has substantial grounds for believing that the defendant will fail to surrender to custody as directed, or will commit an offense while on bail, or will interfere with witnesses, or will otherwise obstruct the course of justice; if these grounds do not exist, the court will grant bail. The premise of this rule is that bail is available, whereas the premise of the Hong Kong National Security Law is that bail shall not be granted unless the judge has sufficient grounds for believing that the defendant will not continue to commit acts endangering national security. Therefore, it was ruled that the High Court judge misunderstood the bail provisions of the Hong Kong National Security Law, the Department of Justice's appeal succeeded, and Lai's bail was revoked.

For cases prosecuted under the Crimes Ordinance, do the bail provisions of the Hong Kong National Security Law also apply to non-National Security Law cases? Five members of the former General Union of Hong Kong Speech Therapists were charged because three children's books they published allegedly contained remarks inciting hatred and contempt for the SAR government. The prosecution requested the court to adopt the bail conditions of the Hong Kong National Security Law, and all were ultimately denied bail. Hau-Yee Ng(伍巧怡), one of the defendants, appealed to the Court of Final Appeal against the decision denying bail based on the Hong Kong National Security Law's bail conditions. The Court of Final Appeal cited the Chee-Ying Laicase in its handling, emphasizing that the legislative intent of the Hong Kong National Security Law is to safeguard national security through mutual assistance and coordination between the Hong Kong National Security Law and local laws, which includes the offenses in this case. The bail provisions refer to "acts endangering national security." After analyzing the wording of other provisions of the National Security Law, the court opined that offenses under both the Hong Kong National Security Law and local laws should be included. Combined with Article 23 of the Basic Law—which specifies that Hong Kong shall enact laws on its own to prohibit acts of sedition—and read together with the Hong Kong National Security Law, the offenses in this case constitute acts endangering national security.

The bail conditions applicable under the Hong Kong National Security Law or the Criminal Procedure Ordinance seem to lack a fixed standard. Their superficial complementarity actually leaves the accused uncertain as to which bail conditions apply, thereby infringing upon the bail rights of the accused.

International Regulations and Practical Cases

Article 9 of the "International Covenant on Civil and Political Rights" explicitly states: "Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law." Article 9, paragraph 3 of the Article 9 of the "International Covenant on Civil and Political Rights" and Rule 6, paragraph 1 of the "United Nations Standard Minimum Rules for Non-custodial Measures" (The Tokyo Rules) also point out: "Pre-trial detention shall be used as a means of last resort in criminal proceedings, given the general principle that a person charged with a criminal offense should not be maintained in custody pending trial."
It can be understood from the above standards that being granted bail should be the principle, and the denial of bail should be an exception and a last resort—unless there are very sufficient reasons to believe that the defendant may abscond during the pre-trial period, commit serious offenses, harass investigations, or pose a major threat to public safety. Then what are the exceptional, special circumstances? Taking Hong Kong as an example, it is when provisions of the Hong Kong National Security Law are violated, where a judge may restrict the personal liberty of the defendant after considering all circumstances and determining that there is a risk the defendant will continue to commit acts endangering national security. Examining the regulations of various countries, the standards also vary:

Country (Region)	Legal Provision	When Bail Must Not Be Granted
Taiwan	Article 101 of the Code of Criminal Procedure	A judge may detain a defendant if there is major suspicion that the defendant has committed an offense, and: there is flight or facts sufficient to believe there is a risk of flight; there are facts sufficient to believe there is a risk of destroying, falsifying, or altering evidence, or colluding with co-offenders or witnesses; or the offense committed is punishable by the death penalty, life imprisonment, or minimum statutory punishment of imprisonment for five years or more.
Hong Kong	Section 9D(2) of the Criminal Procedure Ordinance	Bail must not be granted if the judge believes that the defendant, if granted bail, might fail to surrender to custody as appointed by the court; or commit an offense while on bail; or interfere with a witness or otherwise obstruct or impede the course of justice.
	Article 42(2) of the Hong Kong National Security Law; HKSAR v. LAI CHEE YING (HCCP 738/2020)	Bail shall not be granted if the judge, having considered all circumstances, has no sufficient grounds for believing that the defendant will not continue to commit acts endangering national security.
United Kingdom	Bail Act 1976, sch. 1, part 1, para. 2	The judge "has substantial grounds for believing" that the defendant, if released on bail, would fail to surrender to custody, commit an offense while on bail, or interfere with witnesses or otherwise obstruct the course of justice.
Japan	Article 89 of the Code of Criminal Procedure	The defendant is accused of an offense punishable by the death penalty, life imprisonment, or imprisonment for a certain period or more; there are reasonable grounds to suspect that the defendant may destroy evidence, or harm the victim, witnesses, or other related persons or cause them to experience fear; the defendant's name or residence is unknown.
South Australia	Bail Act 1985 Section 10(1)(a)(b)	The judge must "have regard to" the severity of the offense, the likelihood of flight/reoffending/obstructing justice, the need for physical or medical care, any prior history of breaching bail conditions, or other similar factors.
New Zealand	Bail Act 2000 No 38 Section 8(1)(a)(b)	The judge must "have regard to" the risk of the defendant failing to surrender to custody after bail, endangering witnesses or evidence, or reoffending, as well as any circumstances that might undermine the administration of justice.