Hong Kong, China – Last March, former journalist Gwyneth Ho told a Hong Kong magistrate that she would accept a curfew and other restrictions if she was released from jail before her trial.
Ho was a first-time politician, a bit world-weary, when she joined a civil society vote the previous July to choose candidates to run on the pro-democracy slate in the territory’s Legislature.
A few months later, the 31-year-old was among dozens swept into a national security case when prosecutors accused the group of trying to topple the territory’s government.
In court a few days after her arrest, Ho sought to secure bail ahead of trial.
She told Magistrate Victor So that she had read the original Chinese text of the national security law, along with several decisions by the Hong Kong courts, and also considered the arguments of several of her 46 co-defendants.
“I still can’t distinguish or discover what bail conditions ensure that a person will not violate the National Security Law again,” she said at a hearing on February 28 last year. So denied her petition and despite other bail requests, she has been behind bars since.
In making her argument, Ho raised one of the most pressing issues now facing Hong Kong’s legal system: Who gets bail and what are the standards used to win release?
Since the mass democracy protests of 2019, and China’s imposition of the National Security Law (NSL) the year after, defendants in the territory can no longer assume that they will remain free while they await trial.
Gwyneth Ho (right) with pro-democracy activists including Joshua Wong (left) and Nathan Law (centre), distributed flyers warning about the dangers of the National Security Law a month before it was imposed. She is currently in custody awaiting trial under the law [File: Jerome Favre/EPA}
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.”
Few of those arrested for organising the primary to choose their candidates for the Legislative Council have been allowed bail. Under the China-imposed National Security Law, defendants must prove that they will not pose a risk [File: Jerome Favre/EPA]
Under the National Security Law, which came into force on June 30, 2020, obtaining bail has become more burdensome. Defendants accused of sedition, subversion, terrorism and collusion with foreign forces must prove that they “will not continue to commit acts endangering national security”.
The language of the law, scholars say, assumes those charged are guilty.
Nearly all NSL defendants have been denied bail, even on appeal. Magistrates have cited prosecutor arguments that defendants were influential, “resolute” and “determined” in their politics or actions.
Veteran lawmaker Claudia Mo, one of Ho’s co-defendants, failed to win release in part because she criticised the NSL to reporters before the law passed, even though the authorities stressed that the legislation would not be retroactive. Her colleague Jeremy Tam was kept in jail after prosecutors noted that US consulate officials invited him to a meeting, even though Tam had not accepted.
‘Determined and resolute’
The most prominent NSL defendant to be granted and then denied bail is media tycoon Jimmy Lai.
Now serving more than one year in prison for joining peaceful protests in 2019 and 2020, the founder of the hugely popular but now defunct Apple Daily newspaper faces charges of sedition and “collusion with foreign agents”.
Prosecutors say he and several of his former editors called on the US and other governments to sanction China and Hong Kong officials over the security law.
One magistrate allowed him bail in late 2020 under strict conditions: effective house arrest with no use of social media and no interviews allowed. For the prosecution, even those restrictions were not enough. The government appealed, and Lai’s bail was revoked.
When Lai sought to reverse that decision, the city’s highest court ruled that a defendant “who is determined and resolute may be more readily disposed to committing the prohibited acts than one who is merely drifting along and lacks such enthusiasm”.
Lai, who is now 74, was returned to his cell.
The implications of the bail fiasco were troubling for legal scholar Johannes Chan. The former dean of the University of Hong Kong’s law school said he was worried that bail denials had in themselves become a form of punishment.
Former lawmaker Claudia Mo was denied bail partly because she had criticised the NSL before it was imposed on the territory [File: Jerome Favre/EPA]
After the appeal court’s ruling on Lai, Chan wrote in a Hong Kong Law Journal article published in May 2021, that the decision “may encourage a practice of arbitrary arrest for national security offences, not so much for a conviction, but just to ensure that the accused would be incarcerated for a lengthy period of time before trial”.
The reasoning applied in Lai’s ruling has become a standard cited by judges to deny bail in other security cases. Recently, the ruling was used to keep jailed a woman charged under a colonial-era law.
The December 2021 decision by the city’s highest court ruled that sedition, an old crime found in other common law jurisdictions, is essentially a security crime and therefore, bail decisions should be handled as other national security cases.
In making that argument, the judges denied bail to speech therapist, Sidney Hau Yi Ng. She stands accused of an attempt “to bring into hatred or contempt or to excite disaffection” against the government over a series of illustrated children’s books involving sassy cartoon sheep facing off against a group of wolves.
Ho’s case, meanwhile, grinds on.
She has continued to argue for her bail as she and the other defendants prepare to face charges that carry a sentence of five to 10 years in prison.
In again asking for Ho to be freed before trial, one of Ho’s lawyers read her statement in court last September. “It is artificial to the extreme to say that the Court cannot be satisfied [with] the negative test that a defendant will not commit acts endangering national security, when the content of such acts has never been clearly identified,” she wrote. “The Court must also avoid effectively discriminating against persons holding oppositional political opinions in its application of the NSL Test, as being critical of the government is a far cry from being a criminal or a national security threat.”