False: DOJ did not argue National Security Law has no presumption of innocence
By Cherry Lai
On Dec. 31, 2020, various social media posts from both sides of the political spectrum claimed that the national security law does not uphold the presumption of innocence after the Court of Final Appeal allowed prosecutors to appeal against the bail issued for Jimmy Lai Chee-ying, founder of the Hong Kong media Apple Daily.
Lai was arrested for suspected collusion with foreign forces, considered a violation of the national security law, in August. He was formally charged for the said offense on Dec.11, but was released on a $10-million bail on Dec. 23, granted by the High Court.
A Facebook post by pro-establishment political group Silent Majority, another Facebook post by pan-democratic former Legislative Council member Chu Hoi Dick, and a thread on online forum LIHKG all made the same claim, attributing it to a prosecutor who supposedly argued before the court that Lai should not be granted bail as the national security law does not include the right to be presumed innocent, a right otherwise upheld for people suspected of other criminal offences.
Together, those social media posts gained thousands of engagements. The same claim also appeared in news articles published by local newspaper Sing Tao Daily and its sister paper Headline Daily.
However, the claim is false. The prosecutor Anthony Chau Tin-hang reportedly argued the principle of granting bail should be different in proceedings concerning the national security law.
The Department of Justice also clarified to Annie Lab that what the prosecutor said in court was about the presumption of bail, not about the presumption of innocence. The DOJ also said the initial news reports caused great misunderstanding.
Reacting to the inaccurate news stories, a member of the Executive Council, Ronny Tong Ka-wah, and a law lecturer at the University of Hong Kong, Eric Cheung Tat-ming, commented on the topic saying that the presumption of innocence is, in fact, addressed in the national security law, which has an explicit provision on this matter. The Article 5 stipulates that the suspect is “presumed innocent until convicted by a judicial body.”
Although Sing Tao and Headline Daily have since updated their articles to correct the error, the original article was also published in Canadian Sing Tao. The same report was once available on the MSN website, but it has since been updated too.
What DOJ argued does not concern Article 5 but Article 42 of the law that stipulates, “no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.”
…to prevent, curb and punish crimes, namely acts of secession, subversion of state power, terrorist activities, and collusion with foreign or external forces to endanger national security; maintain prosperity and stability of the HKSAR; and protect the lawful rights and interests of HKSAR residents.
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