Judicial Responses to the National Security Law: HKSAR v Lai Chee Ying

Abstract

Jimmy Lai, a media tycoon supportive of the democratic development of Hong Kong, is the most prominent person arrested under the National Security Law (NSL) since its coming into operation in June 2020. The Court of First Instance granted him bail under stringent conditions, but the decision was reversed on the prosecution’s appeal. The decision of the Court of Final Appeal (CFA), being its first on the NSL, will set the tone for the judiciary in its approach to this controversial piece of legislation. This article analyses the positive and the negative aspects of the CFA’s judgment. It argues that the Court has unnecessarily entered into a jurisdictional question when this could have been avoided. It criticizes the Court for having too readily accepted that Article 42 of the NSL has displaced the common law presumption in favour of bail, without sufficiently examining whether this acceptance is necessary or proportionate to the presumption of innocence and the right to bail that are also protected by the NSL. While the hands of the Court may be tied, it warns against the risk of the Court not holding a draconian provision to the utmost scrutiny.