The Court of Final Appeal was told on Monday that the default position for suspected national security law violations is that no bail should be granted to defendants.

The Department of Justice’s argument came as the top court held a hearing to deal with the government’s appeal against a lower court decision to grant bail to media tycoon Jimmy Lai, who is accused of colluding with foreign forces.

The appeal was being heard by Chief Justice Andrew Cheung, and judges Roberto Ribeiro, Joseph Fok, Patrick Chan, and Frank Stock.

Senior Assistant Director of Public Prosecutions, Anthony Chau, told the court that the crux of the matter lies in the correct understanding of Article 42 of the national security law, which stipulates that no bail shall be granted unless the judge has sufficient grounds to believe that the defendant will “not continue to commit acts endangering national security”.

The prosecutor stressed that unlike in other criminal proceedings, the default position for the national security law is that no bail should be granted.

Chau said judges should make a determination on whether the suspect could “continue endangering national security” based on objective and reasonable evidence, adding that it would be inappropriate for them to mitigate the risk of further violations by imposing extra bail conditions.

Lai was released from detention on bail of HK$10 million on December 23 last year and placed under house arrest. The Apple Daily founder was also ordered by the High Court not to engage in media interviews and social media postings.

However, the Department of Justice sought leave to appeal against the bail move, saying the original judge had erred in his decision.

Prosecutors argued that the responsibility to protect national security is of paramount importance, and those suspected of breaching the Beijing-imposed law should be denied bail the same way someone charged with murder would be.

The Court of Final Appeal eventually approved the appeal application on December 31 last year, and remanded Lai in custody again pending Monday’s hearing.
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