Hong Kong national security law: suspect’s release bid first test for city’s judges on defendant’s rights versus new legislation
- Tong Ying-kit to apply for a writ of habeas corpus at the Court of First Instance
- Tong was remanded into custody over incident during July 1 protest
Tong Ying-kit, 23, will apply for a writ of habeas corpus at the Court of First Instance, in an unprecedented challenge that will be the first test of how the city’s judges deal with common law rights versus legislation imposed by Beijing, a non-common law jurisdiction.
Under common law, lawyers can apply to a judge for the release of their clients unless officials can show lawful grounds for their detention.
But lawyers say such a right has not been spelt out clearly in the new law, which has laid down a different set of bail conditions for cases charged under it.
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What you should know about China's new national security law for Hong Kong
Defendants are required to prove they will not breach the new law during their bail period, as opposed to the usual burden which rests with prosecutors, who, among other things, most show the suspect is a flight risk, or could obstruct witnesses.
His lawyer, Ng Gene-bond, said because there was a presumption of no bail under the new law, Tong’s leading barrister, Philip Dykes SC, had suggested using the common law right.
“We have contemplated it elaborately for a month,” Ng said. “But no one knows whether it will be allowed under the new law. So we are all full of question marks.”
Dykes, chairman of the Hong Kong Bar Association, will lead a team that includes barristers Queenie Ng and Linda Wong Shui-hung.
They will make a conventional bail application during the same proceedings as well.
Tong’s case will be heard by Court of First Instance judge Mr Justice Anderson Chow Ka-ming.
He is accused of riding his motorcycle into a group of police officers during a July 1 protest, while carrying a flag bearing the popular protest slogan “Liberate Hong Kong; revolution of our times”.
Hong Kong national security law official English version:
The motorcyclist, who was hospitalised with a fractured leg, appeared at West Kowloon Magistrates’ Court last month in a wheelchair to face charges of inciting secession and engaging in terrorism, offences carrying a maximum term of life in prison.
Prosecutor Anthony Chau Tin-hang revealed during that hearing that three officers had suffered serious injuries in the incident, including displacement of the spine, rib fractures and bruises, with one of them still in hospital.
Chief Magistrate Victor So Wai-tak, one of six magistrates hand-picked by the city’s leader, Carrie Lam Cheng Yuet-ngor, to handle national security cases, adjourned Tong’s case for three months to October 6.
Prosecutors said the time was to allow for further investigation, including gathering security footage and news clips from open sources, and examining the defendant’s motorcycle and mobile phone.
So refused to grant Tong bail.
A government spokesman said Chow was also one of the judges designated to adjudicate on cases relating to the national security law.
“Judges from various levels of courts are being appointed one after another. The government will inform the public in due course,” he said.
