【By D @ CUHK Law NSL Concern Group】

Article 28 of the Basic Law states that the freedom of the person of Hong Kong residents shall be inviolable. However, once a person is arrested, his liberty is hampered. As Zervos J puts it, “Bail is the conditional grant of liberty to a person suspected of committing or alleged to have committed a criminal offence.”[1] It provides for a balance, so that before a person is convicted, his personal liberty is not disproportionately constrained. However, recently, it is observed that Hong Kong courts may no longer adhere to such principles in bail proceedings.

In most circumstances, before a person is brought to court, he is arrested and detained by the police. If he is not subsequently charged, he may be given police bail, with the implication that there is insufficient evidence, or it is an inappropriate timing for the Department of Justice to begin prosecution. However, once the person is brought to court, his custody is transferred. Normally, when the proceeding begins, the defendant is not required to plea immediately. At this stage, by granting bail, the court confirms the principle of ‘innocent until proven guilty’, as there is no legal indication of fault regarding the allegations the defendant faces. When he eventually pleads ‘not guilty’, and trial dates are set, he then has an inherent and qualified right (not a privilege) for bail, as the presumption in favour of bail pending trial is both enshrined in Bill of Rights Ordinance (Cap. 383)[2] and confirmed in High Court[3]. It is understood that long delays in legal proceedings may lead to injustice, as justice delayed is justice denied[4], therefore the favourable presumption for bail reduces the injustice on the defendant awaiting trial, if eventually acquitted.

Nevertheless, the surge of protest-related cases sees conventional bail practices abandoned. Courts tend to impose stringent bail conditions, such as 24-hour CCTV monitoring[5] (later ruled out[6]) and extensive curfew hours (e.g. 11-hour curfew from 8pm-7am[7]). With such harsh conditions, the bail granted is akin to house arrest, which counts to none of the sentence imposed on the defendant, if eventually convicted. In worse scenarios, bail is refused on superficial grounds and could amount to enforced guilty pleas. Between February and March 2021, more than 40 people were charged with ‘riot’ regarding the PolyU siege in November 2019, most of them were initially refused bail[8], some were granted with extreme conditions[9]. In the prosecution’s submissions, they emphasised that there were ‘fugitives’ in the same case (those who left Hong Kong after refusing police bail). The court granted bail to some defendants on the basis that they had exams coming up soon[10], yet others who suggested even harsher conditions saw their applications rejected because the case is of serious nature and there are ‘others on the loose’[11]. One must wonder if exams are the differentiating factor for bail, then should the defendants have their bail rescinded once they finish their papers? One of the defendants, who only graduated in December 2020[12], had her bail application rejected in High Court[13]. Her counsel pleaded that on the day when she was arrested, her parents informed her that police came looking for her at her old address, then she went to Mong Kok police station herself and waited for an hour to be arrested, fully knowing that she is likely to be brought to court immediately. Yet, Toh J repeated the prosecution’s submissions and rejected her application. One might say the court is entitled to take the nature and conviction implication of the case into account, as provided in s9G(2) of Criminal Procedure Ordinance (Cap. 221) (CPO)[14], but in the same section, the behaviour, demeanour and conduct of the accused person is another condition available for consideration. Indeed, judges have a wide degree of discretion when it comes to bail[15], but what is left of the law if discretion is fettered?

The fundamental objective of bail is to ensure that the defendant appears at his trial[16] and that the public are protected from further offences in the meantime[17], as Zervos J reminded us. Except for the most serious charges, such as murder and treason[18], courts should be under a duty to be in favour of granting bail, as long as they are satisfied that defendants will not fall under any of the circumstances provided in s9D(2) of CPO[19]. Time in remand before conviction would count towards the ultimate court sentence, for practical reasons, some defendants may plead guilty, even though they might be acquitted after trial, in order to regain liberty as soon as possible. By refusing bail, not only is the court encouraging enforced guilty pleas from defendants, it is also aiding and abetting the government in using bail proceedings as a political tool in punishing ‘dissidents’ before conviction for their alleged protest-related crimes. The plea of ‘guilty’ also creates psychological effects for both the government and the defendants, the former triumphant and the latter defeated.

“An application for bail is really nothing more than a simplified habeas corpus application.”[20] Habeas corpus, as the cornerstone of law, emphasises personal liberty[21] and presumption of innocence. Fundamental legal principles cannot be easily defeated by an incompetent or dishonourable prosecution, without the help of a court living in an ivory tower.

 

[1] HKSAR v Vu Thang Duong [2015] 2 HKLRD 502
[2] Article 5(3), Hong Kong Bill of Rights Ordinance (Cap. 383)
[3] HKSAR v Vu Thang Duong [2015] 2 HKLRD 502
[4] “To delay justice is injustice.” Penn, William (1693), Some Fruits of Solitude, Headley, 1905, p.86.
[5] 明報（2020年2月29日）。〈應屆文憑試考生涉校內管有炸藥准保釋 客廳須裝閉路電視供警監視〉。《明報》。
[6] HKSAR v. Kwan Ka Yiu [2020] HKCFI 378
[7] 明報（2020年12月9日）。〈六旬漢涉6．12一年帶頭叫「死黑警」 控擾亂秩序准保釋須宵禁〉。《明報》。
[8] 獨立媒體（2021年3月13日）。〈【理大圍城】被控暴動19人申請保釋 聆訊至晚上 15人繼續還柙〉。《獨立媒體》。
[9] 蘋果日報（2021年3月12日）。〈理大圍城49人被控暴動 法官批准部份原遭還柙被告保釋〉。《蘋果日報》。
[10] 學苑（2021年3月12日）。〈理大圍城：港大生被控兩項暴動罪 還押十七日終准保釋〉。《學苑》。
[11] 蘋果日報（2021年3月12日）。〈理大圍城49人被控暴動 法官批准部份原遭還柙被告保釋〉。《蘋果日報》。
[12] 獨立媒體（2021年3月25日）。〈理大圍城 22歲大學畢業生被控暴動 向高院申請保釋遭拒〉。《獨立媒體》。
[13] HKSAR v Cheng Cheuk Lam HCCP144/2021
[14] Criminal Procedure Ordinance (Cap. 221) s9G(2): The court in forming an opinion under subsection (1) may have regard to —
(a) the nature and seriousness of the alleged offence and, in the event of conviction, the manner in which the accused person is likely to be dealt with;
[15] Criminal Procedure Ordinance (Cap. 221) s9G(2): The court in forming an opinion under subsection (1) may have regard to —
(b) the behaviour, demeanour and conduct of the accused person;
[16] “Bail is simply a method to assure the court that the defendant will appear for later proceedings.” Vago, Steven (2009) Law and Society, 9th Edition (Upper Saddle River, NJ: Pearson Prentice Hall), Chapter 3
[17] HKSAR v Vu Thang Duong [2015] 2 HKLRD 502
[18] Criminal Procedure Ordinance (Cap. 221) s9G(10): An accused person charged with —
(a) murder; or
(b) treason under section 2 of the Crimes Ordinance (Cap. 200),
shall be admitted to bail only upon the order of a judge.
[19] Criminal Procedure Ordinance (Cap. 221) s9D(2): An order under subsection (1) may be subject to such conditions as appear to the court to be necessary to secure that the person admitted to bail will not —
(a) fail to surrender to custody as the court may appoint; or
(b) commit an offence while on bail; or
(c) interfere with a witness or pervert or obstruct the course of justice.
[20] HKSAR v Siu Yat Leung [2002] 2 HKLRD 147
[21] “A person may not be detained against his will on the say-so of a dictator or minister or official, unless such direction has the authority of law. He cannot be detained on the unlawful order of a judge either.” Bingham, Tom (2011) The Rule of Law (London: Penguin Books), Chapter 2.

Author’s note: CUHK Law NSL Concern Group is an unofficial student body, managed by CUHK law students, we do not represent the CUHK Faculty of Law; our group is also not a registered affiliated club or society under the CUSU.

CUHK Law NSL Concern Group Facebook