Testing the New National Security Law

Tong Ying-kit rode this motorcycle with the offensive flag

The first person to be charged under the national security law was in court today and sought bail. Tong Ying-kit, 23, is accused of riding his motorcycle into a group of policemen on July 1 and carrying a flag that said: "Liberate Hong Kong, revolution of our times".

However the new national security law violates constitutional protections under the Basic Law, such as presumption of innocence and against arbitrary detention; Tong's lawyers argued this point today.

He allegedly crashed into a group of policemen

The crux of the constitutional challenge is the interpretation of Article 42 under the national security law, which says: "no bail shall be granted... unless the judge has sufficient grounds for believing the criminal suspect or defendant will not continue to commit acts endangering national security".

Tong's lawyers, led by Philip Dykes SC, says they applied for habeas corpus [a writ to release someone under arbitrary detention], because the new law assumes the defendant applying for bail has already committed acts endangering public security.

They argued, "This Article is, in effect, a 'no bail' provision. As such, it is inconsistent with more than one provision of the Basic Law and the national security law, and the court should treat it as having no effect."

It should be noted Article 4 of the new law stipulates protections for traditional rights and freedoms, such as prohibitions against arbitrary detention, as provided by international treaties, while Article 28 of the Basic Law offers similar protections.

Dykes argues NSL assumes guilt not innocence

Justice Anderson Chow Ka-ming said the ordinance appears to give the courts the discretion to grant bail, while the same could not be said of Article 42 in the national security law.

"We acknowledge the wordings are different. We need time to consider and advance further legal arguments," said Jenkin Suen, SC, prosecutor on behalf of the Security of Justice.

Full arguments from both sides will be heard on August 20.

These inconsistencies are what legal professionals were worried about and now there will be a long drawn-out process to expose them.

Currently under common law, lawyers can apply to a judge for the clients' release unless officials can justify the lawfulness of their detention.

But critics say no such right has been spelled out clearly in the national security law, which has a different set of bail conditions for cases charged under it.

Tong's case is a test case on the NSL

Tong's case is going to take a long time to battle out in court, but it will be very interesting to see more inconsistencies in how the national security law interfaces with the Basic Law, and how the former will be interpreted.