Assessing the Grant of Bail in Light of a Presumption Against Bail: HKSAR v Lai Chee Ying [2021] HKCFA 3
| Published date | 01 August 2021 |
| Date | 01 August 2021 |
| DOI | http://doi.org/10.1177/00220183211027074 |
| Subject Matter | Case Notes |
Case Note
Assessing the Grant of Bail
in Light of a Presumption
Against Bail
HKSAR v Lai Chee Ying [2021] HKCFA 3
Keywords
Presumption against bail, burden of proof, bail conditions, national security law, Hong Kong,
comparative law
Under s 9D(1) of the Criminal Procedure Ordinance (Cap 221) (‘CPO’) in Hong Kong, a defendant will
be granted bail when he or she applies to a court for it. Bail may be granted subject to certain conditions
(set out in a non-exhaustive list of examples under s 9D(3)) to ensure that he or she will not fail to
surrender to custody, commit an offence while on bail or interfere with a witness or pervert or obstruct
the course of justice (s 9D(2)). This is also known as a ‘presumption of bail’, which has been suggested
by the Hong Kong Court of First Instance (‘HKCFI’) as a natural extension of the presumption of
innocence: see HKSAR v Wong Chi Fung [2020] HKCFI 392 at [16]. Bail regimes of a similar nature
can be found in other common law jurisdictions, for example, the UK (s 4(1) of the Bail Act 1976) and
Canada (s 515(1) of the Criminal Code of Canada (RSC 1985) (‘CCC’)).
The introduction of the Law of the People’s Republic of China on Safeguarding National Security in
the Hong Kong Special Administrative Region (‘NSL’), a piece of legislation that has received ‘wide-
spread international condemnation’ (see C Chan, ‘Can Hong Kong Remain a Liberal Enclave Within
China? Analysis of the Hong Kong National Security Law’ [2021] PL 271, 272), however, introduced
new dynamics to the application for court bail in Hong Kong. Article 42(2) of the NSL (‘NSL 42(2)’)
reads:
No bail shall be granted to a [defendant] unless the judge has sufficient grounds for believing that the criminal
suspect or defendant will not continue to commit acts endangering national security. (emphasis added)
The interpretation of NSL 42(2) and its relationship with the CPO bail regime was addressed in a
recent decision of the Hong Kong Court of Final Appeal (‘HKCFA’), HKSAR v Lai Chee Ying [2021]
HKCFA 3. In December 2020, the respondent, a pro-democracy media tycoon, was charged with one
count of ‘collusion with a foreign country or with external elements to endanger national security’ under
art 29(4) of the NSL. Refusing the respondent’s application for bail, the Chief Magistrate considered that
there were substantial grounds for believing that the respondent would fail to surrender to custody or
commit an offence while on bail.
On appeal, the HKCFI granted the respondent bail. In granting bail, it followed the approach estab-
lished by itself in Tong Ying Kit v HKSAR [2020] HKCFI 2133 at [37]: ‘whether there are grounds, or
reasons, to believe that the defendant will continue to commit “acts endangering national security”’.
The prosecution appealed against the HKCFI’s decision to the HKCFA, which certified the following
question as having great and general importance ([2020] HKCFA 45 at [20]):
What is the correct interpretation of [NSL 42(2)]?
The Journal of Criminal Law
2021, Vol. 85(4) 329–332
ªThe Author(s) 2021
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DOI: 10.1177/00220183211027074
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