This is the third of a four-part series on the impact of the national security law, one year after it was imposed on Hong Kong by Beijing on June 30, 2020. Chris Lau and Laura Westbrook speak to legal scholars on the new precedents being set on bail, trials, sentences to be meted out, and whether the law is being weaponised against political opponents. Read part one here and part two here . For the past three months, the wife of former Democratic Party lawmaker Andrew Wan Siu-kin has visited him in detention every day. She quit her job as a social worker when he was put behind bars, charged with violating Hong Kong’s year-old national security law and denied bail. Apart from the daily visits, Agnes and their children, a 12-year-old boy and 16-year-old girl, eagerly await the letters Wan sends from Lai Chi Kok Reception Centre, where he is being held. But some of the news is difficult to hear, as he described his uneven bed and the overwhelming heat in his cell during a recent heatwave. “The hardest thing for me is to see how helpless he is,” said Agnes, who has been married to the 52-year-old Wan for almost 20 years. The stocky social worker weighing over 90kg had lost more than 13kg since going into detention in April, she said. When asked how the family would cope if he were to be put away for a long time, Agnes said: “We don’t dare think about it.” Wan is one of 47 opposition figures charged under the national security law in March with conspiracy to commit subversion. The Beijing-drafted law has been credited by authorities with helping to restore order after months of chaotic street protests . But critics at home and abroad have argued the wide reach of the law, which bans acts of secession, terrorism and collusion with foreign forces, is being used to attack civil liberties and demolish the city’s formal political opposition. Since the legislation came into effect on June 30 last year, police have arrested 117 suspects from all walks of life – from a 15-year-old girl waving a banner calling for the city’s independence to the 73-year-old founder of the now-defunct Apple Daily newspaper, Jimmy Lai Chee-ying. So far, 61 have been charged in court, and the first trial began last week, with the defendant facing a possible life sentence. Why are Hong Kong academics quitting newspaper columns? Three words: national security law But several critical questions linger over how the cases will be handled and the answers could affect international confidence in Hong Kong’s legal system, the bedrock of its success as a global financial hub. Legal scholars and experts told the Post they were waiting to see whether suspects would be granted bail or receive jury trials, what kind of sentences would be meted out, and even scenarios under which defendants could be sent to mainland China. “Until the first cases go to court and the first people are either convicted or acquitted and we read a judgment, we can’t be sure whether this is going to be regarded as a draconian law or a perfectly acceptable national security law, the same as the equivalents in the United States, Australia and everywhere else,” said Andrew Powner, managing partner of Haldanes, the city’s largest criminal law firm. The implications of the first trial The first person charged under the new law was motorcyclist Tong Ying-kit, 24, a Hongkonger juggling part-time jobs to make ends meet. He was arrested in Wan Chai last July 1, just hours after the law took effect, after allegedly riding his motorcycle into a group of police officers with a black flag sticking out of his backpack declaring: “Liberate Hong Kong; revolution of our times” – the mantra of the 2019 anti-government protests. Tong was charged with incitement to commit secession as well as terrorism. Earlier this month, prosecutors succeeded in adding another charge of dangerous driving causing grievous bodily harm against him under the Road Traffic Ordinance which will serve as a fallback should they be unable to prove the more serious charge. Tong was denied bail, and Secretary for Justice Teresa Cheng Yeuk-wah exercised her power under the new law to decide the trial would not be heard by a jury. Instead, his case is being heard by three judges picked from a panel of jurists hand-selected by the chief executive. Book fair organisers urge exhibitors to be ‘self-disciplined’ with national security law in place Senior Counsel Philip Dykes, representing Tong, filed appeals to win him bail and a jury trial, both long-standing pillars of Hong Kong’s common law legal system. But the Court of First Instance ruled that a hearing by his peers was not a constitutional right, and that the security law overrode a provision guaranteeing the “principle” of jury trials in the city’s mini-constitution, the Basic Law. The appeal court later upheld the lower court’s ruling. Dykes said: “There is a bit of a fog, and in the next 12 months, we may see that fog lift and clear, and things may be more certain. But we are still finding our way.” A central aspect of the trial, which began on June 23, involves the legality of the “Liberate Hong Kong” slogan, and whether certain political statements will be criminalised. Prosecutors have argued Tong flew the flag to incite others to commit secession. The court’s ruling will have far-reaching implications, as even a year into the law’s roll-out, scatterings of protesters have chanted the slogan in defiance. For example, during the June 4 Tiananmen Square crackdown anniversary, spontaneous outbursts of the chant could be heard. It was shouted again last week when crowds gathered late into the night to get their hands on the final copies of Apple Daily at news-stands in Mong Kok. Academic Simon Young Ngai-man, who specialises in security law at the University of Hong Kong (HKU), noted additional points of concern over the first case. It remains unclear, for instance, how a three-judge court will decide the case compared with a jury. Serious criminal cases are normally heard by a panel of seven residents, and at least five must agree on the verdict. Must the three judges deliver a unanimous verdict, or will a 2-1 majority suffice? If Tong is convicted, how will the sentence be decided? Local laws prescribe only maximum sentences for crimes, but the new security legislation for the first time introduced minimum terms in Hong Kong. Article 20 requires that a principal offender or person who commits an offence “of a grave nature” be jailed for between 10 years and life, and criminals who “actively participate in an offence” receive a term of between three and 10 years. “Other participants” are to be given no more than three years. But how would judges decide the gravity of an offence and define what constitutes a “principal offender”, Young asked. “In common law, it means the people who carry out the act, not necessarily the mastermind,” he said. “But I am not sure whether the new law refers to the mastermind here.” Tong’s case has also thrown up questions over the implications of police and prosecutors using their wider investigative powers under the security law to charge a suspect with an unrelated offence, such as dangerous driving. The grey area of bail Of the 61 people charged so far, only 12 have been granted bail. The law specifies bail will only be granted if a judge “has sufficient grounds for believing” the defendant will not continue to commit “acts endangering national security”. Lai, whose Next Digital media empire collapsed last week after six top executives were arrested and company assets were frozen, has challenged the decision to deny him bail. He was arrested last August, along with his younger son and four others, after hundreds of police officers descended on Next Digital’s headquarters in Tseung Kwan O. Lai faces charges of colluding with foreign forces and conspiracy under the national security law, as well as a separate charge of fraud. He is currently serving a 20-month sentence over his role in unauthorised assemblies during the anti-government movement. You are taking away people’s liberty. You lock people up while you continue with your investigation. As a lawyer, I really find it very, very hard to swallow Civic Party chairman Alan Leong After the second raid on June 21, police charged editor-in-chief Ryan Law Wai-kwong and publisher Cheung Kim-hung with conspiracy to collude with foreign forces, alongside three affiliated Apple Daily companies. The two remain in custody after their applications for bail were denied. Authorities have pointed to the publication of about 30 articles calling for foreign sanctions against Hong Kong, an offence under the security law. Lai was released on bail shortly after he was charged in December, but was remanded in custody again after the Court of Final Appeal overturned the lower court’s decision in a precedent-setting ruling that Dykes described as “a big change in our law”. The top court ruled the security law set a “stringent threshold requirement for bail applications” that was different from the standard practice of approving them except in certain circumstances, such as when a defendant is deemed a flight risk. According to Johannes Chan Man-mun, a specialist in human rights law at HKU, Lai’s legal challenge helped clarify aspects of the bail provision under the security law and reaffirmed the principle of presumption of innocence. Writing in the Hong Kong Law Journal , Chan noted the top court had narrowed the scope of “acts endangering national security” on the question of bail. But how? It made clear, he said, that a defendant was not denied bail because he committed “any” act deemed to have remotely endangered security. Instead, the rejection would have to be based on whether he could have committed specific acts that could amount to an offence. A pro-Beijing legal scholar who spoke on condition of anonymity said it was an encouraging sign that 12 of the 47 opposition figures had been temporarily released from custody. Inquiry launched after books by Jimmy Lai displayed as recommended titles at public library “While bail has proven to be rather difficult to secure, this shows it is not entirely impossible,” he said. But Civic Party chairman and lawyer Alan Leong Ka-kit disagreed, saying that given some of the city’s most widely respected opposition politicians remained in custody, critics were right to worry about how the security law was being used. “We have 47 of the most respected politicians behind bars before they have even seen the indictments against them,” he said. “You are taking away people’s liberty. You lock people up while you continue with your investigation. As a lawyer, I really find it very, very hard to swallow.” Young, from HKU, said that in the absence of any judicial decisions on how to interpret the four security law offences, judges had to tread extra carefully and weigh the risks of granting bail. “That question of risk depends on what the law is, but we don’t [have clarity about] the law,” he said. “Right now, many people are being denied bail because the judges think the law is defined very broadly.” Does Beijing have last say or is common law still valid? Under Article 43, police can freeze property used or intended to be used in a national security offence, as well as proceeds of the crime and any other assets related to the offence allegedly committed. Authorities invoked that power to cut off Lai’s access to nearly HK$500 million (US$64.4 million), including all of his shares in Next Digital and the local bank accounts of three companies he owns. John Lee Ka-chiu, acting as the security secretary before he was promoted to chief secretary last week, also warned banks that dealing with Lai’s frozen accounts could land them in jail for up to seven years. Dismissing concerns over the move, he said: “I am exercising the power because Lai has been charged with two offences of collusion with other countries or external forces to endanger national security.” Both the governments in Hong Kong and Beijing have repeatedly brushed off accusations by Western nations that the law has silenced dissent by saying those very same countries have enacted similar legislation. The new law goes beyond even the toughest of laws in liberal democracies in allowing the executive to limit which judges will hear security cases … and in defining so many matters of life Kent Roach, University of Toronto law professor According to University of Toronto law professor Kent Roach, author of the book Comparative Counter-Terrorism Law , the security law indeed shares features with ones introduced in liberal democracies. For instance, the Patriot Act the United States Congress passed following the September 11 terrorist attacks, allows judges to deny suspects bail. “That said, the new law goes beyond even the toughest of laws in liberal democracies in allowing the executive to limit which judges will hear security cases at all levels of the judiciary and in defining so many matters of life – including the expression of ideas about even peaceful secession or ‘provoking hatred’ against governments as serious security crimes,” he said. Sending people to mainland China for trial is extremely unlikely to happen, because in my view, that is not something the Hong Kong … or mainland Chinese government wants to see Lin Feng, City University law professor Roach noted that the Hong Kong law was not subject to judicial challenge, a point affirmed by the top court. And Beijing has reserved the right to order that defendants be sent to the mainland, which has a notoriously opaque legal system, to stand trial in complex cases involving foreign countries. But Lin Feng, a professor of Chinese law at City University, was doubtful authorities would turn to that option readily. “Sending people to mainland China for trial is extremely unlikely to happen, because in my view, that is not something the Hong Kong government or the mainland Chinese government wants to see,” he said. While authorities have insisted the security law will target only a handful of individuals, some legal scholars told the Post the prosecution of political figures was prompting questions over whether the law was being weaponised. Several of the former lawmakers and elected district councillors chose to quit politics for good while being detained. Whether this could mitigate any punishment they might receive remains unknown. At the same time, some political groups have disbanded and a number of activists have fled the city. Barrister Dykes warned of the danger of outlawing “mere speech” without necessarily having proof of intent to promote or instigate violence. “Speech is often the vehicle through which criminal enterprises are to be undertaken,” he said. “But the unusual feature of the national security law is that speech in itself attracts serious criminal consequences.” Protesters seeking asylum abroad from national security law vow to fight on, but feel ‘survivor’s guilt’ HKU’s Young said: “It’s a tough law, particularly in terms of its punishment.” But he pointed to Article 4, which protects freedom of speech and human rights – paying heed to the International Covenant on Civil and Political Rights – and Article 5, which pledges the rule of law, citing both as “insurance” in applying the law. Perhaps the greatest uncertainty over what Hong Kong and the international community can expect going forward arises from the fact that under the Basic Law, ultimate power for interpreting laws lies with China’s top legislative body, the National People’s Congress Standing Committee. While this was true even before the imposition of the national security law, the bracing pace at which the central government has unleashed recent legislation has triggered anxiety. A senior counsel who declined to be named said the fewer times Beijing stepped in to interpret the law, the better. Beijing’s top diplomat in Hong Kong doubles down on warnings to ‘foreign forces’ “The more occasions when a law written under a different culture is to be directly applied to Hong Kong, the more one gets the impression that the systems are being eroded,” the barrister said. Lin, from City University, argued that Beijing had become more assertive in aspects of Hong Kong society where it wanted overriding legislative power, namely national security and electoral reform. “In those areas, it’s pretty clear its views will prevail,” he said. But even after a year that had averaged one arrest about every three days, the effects of the law had yet to be fully set out, scholars said. “There is still room, I think, for courts to interpret it in a way that is consistent with the common law values,” Young said. Part one of the series looks at protesters and politicians who sought asylum abroad because of the national security law, and how they struggle with so-called survivor’s guilt. In part two , the Post speaks to academics who have stopped writing opinion columns for fear of breaching the law and others who find the areas for research shrinking because of unknown red lines.