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‘Assumed as criminals’: Hong Kong defendants discover bail elusive

Hong Kong, China – Last March, former journalist Gwyneth Ho informed a Hong Kong Justice of the Peace that she would settle for a curfew and different restrictions if she was launched from jail earlier than her trial.

Ho was a first-time politician, a bit world-weary, when she joined a civil society vote the earlier July to decide on candidates to run on the pro-democracy slate within the territory’s Legislature.

A number of months later, the 31-year-old was amongst dozens swept right into a nationwide safety case when prosecutors accused the group of making an attempt to topple the territory’s authorities.

In court docket just a few days after her arrest, Ho sought to safe bail forward of trial.

She informed Magistrate Victor So that she had learn the unique Chinese textual content of the nationwide safety regulation, together with a number of selections by the Hong Kong courts, and in addition thought of the arguments of a number of 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 mentioned at a listening to on February 28 final 12 months. So denied her petition and regardless of different bail requests, she has been behind bars since.

In making her argument, Ho raised one of the vital urgent points now going through Hong Kong’s authorized system: Who will get bail and what are the requirements used to win launch?

Since the mass democracy protests of 2019, and China’s imposition of the National Security Law (NSL) the 12 months after, defendants within the territory can now not assume that they’ll stay free whereas they await trial.

Pro-Democracy Activists And Demosisto Members Joshua Wong (L), Jannelle Leung (2-L), Nathan Law (C), Sunny Cheung (2-R), And Gwyneth Ho (R), All Wearing Face Masks, Distribute Flyers Against China'S Controversial National Security Law For Hong KongGwyneth Ho (proper) with pro-democracy activists together with Joshua Wong (left) and Nathan Law (centre), distributed flyers warning concerning the risks of the National Security Law a month earlier than it was imposed. She is at the moment in custody awaiting trial underneath the regulation [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.”

Pro-Democracy Activists And Politicians Brought Out In Handcuffs To Get Into A Prison Van To Be Taken To A Pre-Trial Hearing. 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 got here into drive on June 30, 2020, acquiring bail has develop into extra burdensome. Defendants accused of sedition, subversion, terrorism and collusion with overseas forces should show that they “will not continue to commit acts endangering national security”.

The language of the regulation, students say, assumes these charged are responsible.

Nearly all NSL defendants have been denied bail, even on attraction. Magistrates have cited prosecutor arguments that defendants had been influential, “resolute” and “determined” of their politics or actions.

Veteran lawmaker Claudia Mo, considered one of Ho’s co-defendants, didn’t win launch partially as a result of she criticised the NSL to reporters earlier than the regulation handed, regardless that the authorities confused that the laws wouldn’t be retroactive. Her colleague Jeremy Tam was saved in jail after prosecutors famous that US consulate officers invited him to a gathering, regardless that Tam had not accepted.

‘Determined and resolute’

The most outstanding NSL defendant to be granted after which denied bail is media tycoon Jimmy Lai.

Now serving multiple 12 months in jail for becoming a member of peaceable protests in 2019 and 2020, the founding father of the vastly widespread however now defunct Apple Daily newspaper faces fees of sedition and “collusion with foreign agents”.

Prosecutors say he and several other of his former editors known as on the US and different governments to sanction China and Hong Kong officers over the safety regulation.

One Justice of the Peace allowed him bail in late 2020 underneath strict circumstances: efficient home arrest with no use of social media and no interviews allowed. For the prosecution, even these restrictions weren’t sufficient. The authorities appealed, and Lai’s bail was revoked.

When Lai sought to reverse that call, town’s highest court docket dominated {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’s now 74, was returned to his cell.

The implications of the bail fiasco had been troubling for authorized scholar Johannes Chan. The former dean of the University of Hong Kong’s regulation faculty mentioned he was apprehensive that bail denials had in themselves develop into a type of punishment.

Veteran Politician Claudia Mo Dressed In A Navy Blue Shirt And Carrying A Placard Calling For Freedom Of Expression And Association Takes Part In A 2018 ProtestFormer lawmaker Claudia Mo was denied bail partly as a result of she had criticised the NSL earlier than it was imposed on the territory [File: Jerome Favre/EPA]

After the attraction court docket’s ruling on Lai, Chan wrote in a Hong Kong Law Journal article printed in May 2021, that the choice “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 utilized in Lai’s ruling has develop into a normal cited by judges to disclaim bail in different safety circumstances. Recently, the ruling was used to maintain jailed a girl charged underneath a colonial-era regulation.

The December 2021 determination by town’s highest court docket dominated that sedition, an previous crime present in different widespread regulation jurisdictions, is basically a safety crime and due to this fact, bail selections ought to be dealt with as different nationwide safety circumstances.

In making that argument, the judges denied bail to speech therapist, Sidney Hau Yi Ng. She stands accused of an try “to bring into hatred or contempt or to excite disaffection” towards the federal government over a collection of illustrated kids’s books involving sassy cartoon sheep going through off towards a gaggle of wolves.

Ho’s case, in the meantime, grinds on.

She has continued to argue for her bail as she and the opposite defendants put together to face fees that carry a sentence of 5 to 10 years in jail.

In once more asking for Ho to be freed earlier than trial, considered one of Ho’s legal professionals learn her assertion in court docket final 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.”

No date for the trial has been set.

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