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The Struggle Over Jimmy Lai’s Bail Is a Struggle Over Hong Kong’s Freedom of Expression

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The Struggle Over Jimmy Lai’s Bail Is a Struggle Over Hong Kong’s Freedom of Expression

Bail has become the most immediate arena in which the ongoing struggle between China’s Communist Party and Hong Kong’s judicial system is taking place.

The Struggle Over Jimmy Lai’s Bail Is a Struggle Over Hong Kong’s Freedom of Expression

Jimmy Lai leaves the Court of Final Appeal in Hong Kong, Dec. 31, 2020.

Credit: Flickr/ Studio Incendo

Hong Kong media mogul Jimmy Lai must know what it feels like to be a shuttlecock in badminton. The Hong Kong government has arrested the prominent pro-democracy figure so many times for alleged protest-related offenses against local law, and the courts have granted him bail pending trial so many times, that he must be accustomed to moving back and forth between jail and his closely-monitored home.

Now the recent additional prosecution against Lai for allegedly violating the new centrally-imposed National Security Law for Hong Kong (NSL) by supposed “collusion with a foreign country or with external elements to endanger national security” has made the usually mundane bail issue the focus of public attention. Bail has become the most immediate arena in which the ongoing struggle between China’s Communist Party and Hong Kong’s judicial system is taking place.

Lai is not scheduled for his NSL trial until April 16. The question is where he should remain between now and then – in jail or at home. On December 31, a three-judge panel of the Hong Kong Court of Final Appeal (CFA) reversed an order of the High Court that had granted Lai bail subject to extreme restrictions on his freedom. The CFA panel’s decision was not a final one on bail, but cleared the way for the full CFA to consider the bail issue on February 1. In the interim Lai will spend the entire month of January once again in a jail cell.

Lai had already spent most of December in jail, having been arrested on December 2 on rather bizarre local fraud charges and yet again on December 12 on NSL charges. It was not until December 23 that the High Court granted him bail in both cases. From December 23 until the 31st Lai remained at home under the very stringent conditions imposed by the High Court. Although the government contested the grant of bail before the three-judge CFA panel, it did not claim that Lai had violated those conditions.

I was disappointed but not surprised at the panel’s decision. I did not expect it to allow legal technicalities to bar it from considering the government’s effort to reverse the High Court’s bail decision. That would have brought the political heavens down on Hong Kong’s staggering but still independent judiciary.

Nor did I expect the panel to conclude that the controversial High Court decision was not deserving of the full CFA’s review. The bail question involves major new issues of personal freedom and interpretation of the NSL, which in Article 42 imposes what is in effect an unusual presumption against the granting of bail in national security cases. These issues need vetting by Hong Kong’s top court, not only to decide Lai’s freedom pending trial but also to guide lower court judges who will have to handle what could be a large number of future national security prosecutions if political conditions in Hong Kong continue to deteriorate. As the panel judges recognized, these issues raise “questions of great and general importance as to the ambit and effect” of the NSL.

Yet I am disappointed at the panel’s insistence that Lai return to jail for the period before the full CFA’s hearing of the merits of the bail decision. Instead of returning the now hapless Lai to jail for another month, the panel could have temporarily strengthened the already stringent conditions of his release. If, as is often the case in other bail proceedings, there is an understandable concern that Lai, a British national, might try to flee the jurisdiction despite his deep roots in Hong Kong, the panel might, for example, have required him to report to the police daily rather than three times a week as the High Court demanded.

Requiring him to also wear an electronic ankle bracelet to track his movements was apparently suggested by Lai’s lawyers in the hope of securing a favorable bail decision, but objected to by the prosecutors on the surprising ground that the Hong Kong government, unlike other modern governments, is not technologically set up to provide this option.

Yet flight does not appear to be the government’s main concern, although a Houdini-type disappearance, per Carlos Ghosn’s escape from Japan, would be a huge public embarrassment to a regime increasingly concerned with its people’s various attempts to flee their homeland. Moreover, Lai’s house was reportedly already subject to around-the-clock police surveillance.

What is at stake in this case is the government’s fear that the accused, from his home, might repeat the alleged offense for which he is being prosecuted by speaking out against the NSL in violation of the stifling bail terms under which he was released. Of course, Lai had honored those restrictions during the week following his release prior to the panel hearing. Furthermore, if he had attempted to comment about the NSL unfavorably, his bail could have been immediately revoked.

Yet it has been the government’s contention that, since a violation of the NSL is a major offense for which a punishment of up to life imprisonment may be imposed, it should be treated like other major offenses when it comes to bail. For example, it was said, would an accused murderer be granted the opportunity to murder again while awaiting trial? Here speech, the mere use of words, is being equated with the most heinous act known to society – murder.

The CFA panel did not mention the murder analogy. But why did it not, after enhancing the High Court bail restrictions if it deemed necessary, allow Lai to remain at home? Why did it not tilt the delicate balance involved in this decision in favor of restricted personal freedom and physical comfort for a person in his 70s who has not been convicted of the crimes charged, or any crimes? Why did it instead subject him, once again, to the absolute coercion of jail for many more weeks?

After carefully rationalizing its jurisdiction to deal with the bail issue, the panel then disposed of the matter in almost cursory fashion. Its logic is far from impeccable.  It concluded that “it would on balance not be right in principle for us to continue the respondent’s bail pending the appeal since that would assume the validity of the Judge’s order admitting the respondent to bail which is the issue at the very heart of the pending appeal.” But it could just as easily, and more wisely, have reached the opposite conclusion, noting that to temporarily deny bail now assumes the validity of the original denial of bail that the High Court reversed!

In deciding which way to tilt, the panel took into account the prosecution’s concern that, despite all the restrictions on Lai’s conduct during bail and his good record in honoring those restrictions, if his bail were extended there was nevertheless a possibility that he might cause “irreparable prejudice to national security.” The panel did not purport to take into account the fact that its remand condemned someone who is still presumed innocent to another month of police detention, even though he is not accused of murder but of merely making comments and criticisms that the government claims constituted “requests” for foreign interference in Hong Kong.

After making its remand decision, the panel did reflect some awareness of the unfair consequences of its decision, ordering that “the appeal be heard and determined with exceptional expedition.” That would have sounded more persuasive had the panel not then ordered the appeal to be heard not in the next week or two but on February 1. Such a leisurely schedule for further arguing an issue that has already been thoroughly briefed by both sides on three occasions only vindicates the frequently voiced criticism that Hong Kong justice is unusually slow – to the detriment of its residents.

I wonder how the learned judges would strike the balance if they and not Jimmy Lai had to suffer 31 more days of police detention before the bail issue is decided on February 1, and I wonder how they will vote on that question. Further denial of bail will mean at least 75 more days in jail for Lai even before trial  begins, and he presumably will continue to be kept in custody during what may well be a long trial and a longer appeal process. And if at the end of this drawn-out ordeal Lai should finally be acquitted, as the High Court pointed out he might be, the Communist Party and the Hong Kong government will have nevertheless succeeded in “lawfully” punishing him in fact for perhaps as long as a year, despite his innocence.

I also wonder whether, to any extent, the panel’s decision reflected the judges’ awareness that, if Beijing becomes increasingly dissatisfied with their handling of Lai’s case, it can, under Article 55 of the NSL, simply transfer Lai’s prosecution away from Hong Kong for trial in the more predictable courts of mainland China.

No less an authority than the People’s Daily, the authoritative voice of the Chinese Communist Party Central Committee, published an essay emphatically reminding Hong Kong of this possibility  just a few days before the CFA panel made its decision. After fiercely attacking the High Court’s grant of bail in this case, the essay called for the application of Article 55 in an evident attempt to put the greatest political pressure on Hong Kong’s independent judiciary. The message was clear: Do what Beijing wants or lose all jurisdiction over the case. As the full Court of Final Appeal prepares to consider Lai’s renewed plea for bail on February 1, it is really in a hot spot.

Jerome A. Cohen is founding faculty director emeritus of NYU Law School’s US-Asia Law Institute and adjunct senior fellow for Asia at the Council on Foreign Relations.