released October 23, 2020

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Two Hong Kong High Court judges on Friday ruled it lawful to detain the first person charged under the new National Security Law.
Judges Anderson Chow Ka-ming and Alex Lee Wan-tang of the High Court dismissed an application for a writ of habeas corpus by Tong Ying-kit, the first person prosecuted under the National Security Law, which came into effect on June 30.
By filing a writ of habeas corpus, the defendant claimed in court he was being held unlawfully and therefore was seeking his release.
Tong, 23, is alleged to have driven a motorcycle displaying a flag saying "Liberate Hong Kong, Revolution of our times" and charged toward a police checkpoint on July 1. He was accused of inciting others to commit secession and committing terrorist activities causing or intended to cause societal harm.
On Aug 3, Tong applied for a writ of habeas corpus at the Court of First Instance. He has been remanded into custody since he being arrested on July 1. Chief Magistrate So Wai-tak at the West Kowloon Magistrates' Court on July 6 refused to grant bail, and ordered him kept in custody until the next hearing scheduled for Oct 6.
Rejecting Tong's application against So's rule on Friday, Chow and Lee decided the remanding order has "lawful authority". Tong's detention is pursuant to a court order made by the Chief Magistrate in the discharge of his ordinary judicial powers and "cannot be said to be without lawful authority", they said.
According to Article 42 (2), no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing the criminal suspect or defendant will not continue to commit acts endangering national security.
The defendant's senior counsel Philip Dykes, however, argued Article 42 of the National Security Law "takes away the presumptive right to bail" because "to be bailed, the applicant must acknowledge he has already committed such acts, or the judge or magistrate must form a view the applicant had committed relevant acts and that he would not continue to commit them".
The judges said Dykes submission was an "unreasonable reading of the relevant article".
They accepted the submission of Barrister Benjamin Yu, who represented the SAR government, that the word "continue" in Article 42(2) merely means "for a continuing period, ie for the future if bail is granted".
The judges also refuted the argument the Chief Magistrate was not "independent" as "they are selected and appointed by the Chief Executive".
Under the National Security Law, the Chief Executive does not assign or nominate any particular judge to hear any particular case, the task remains a matter for the Judiciary.
They also said it was "obviously untenable" for Dykes to say the Nationality Security Law is "inaccessible" because it was promulgated in the Chinese language.
"There is no law we are aware of which requires a national law promulgated in the Chinese language to be accompanied by an authentic English text," the judges said.
They pointed out Tong can retain a suitable and appropriate barrister to represent him in the present case. There is a large pool of competent senior counsel in Hong Kong who can read and understand Chinese, they added.
Another court will be held on Tuesday to decide whether Tong shall be granted bail.

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