Hong Kong media tycoon Jimmy Lai to remain in jail as landmark security law case continues

Hong Kong media mogul and pro-democracy activist Jimmy Lai will remain in jail after the city’s highest court sided with authorities to keep him in jail pending further legal arguments, in the first real legal challenge to the national security law.

On Tuesday, the court of final appeal gave the department of justice leave to appeal against a high court decision to grant Lai bail while he awaits trial on foreign collusion charges under the national security law.

The 73-year-old is the highest-profile figure among more than 100 people arrested on suspicion of breaching the law, which broadly criminalise acts as sedition, secession, foreign collusion and terrorism.

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Lai is facing trial for alleged foreign collusion, as well as separate charges of fraud and pro-democracy protest-related activity. He was first jailed on 3 December, then released to strict house arrest by the high court 20 days later, after the judge, Alex Lee, found he was not a flight risk. Lai was released from jail on HK$10m bail (£960,000), and ordered not to speak publicly or use social media.

Hong Kong’s justice department sought leave to appeal against the decision at the time but was refused by the high court and so took its case directly to the court of final appeal (CFA). In late December the CFA agreed to hear the case, and returned Lai to jail on remand. After hearing arguments last week, the CFA ruled on Tuesday the department could appeal the decision, and sent the case back to the high court.

Lai’s is a landmark case for the national security law, which was imposed in June last year, essentially by decree from Beijing, but with the blessing of the Hong Kong government.

The national security law’s article 42(2) removes the presumption of bail for defendants – a longstanding tenet of Hong Kong’s justice system – and instead says a judge may grant bail only if they believe the accused “will not continue to commit acts endangering national security”.

The CFA’s ruling said article 42(2) created a specific exemption to the general rule in favour of bail, and established “a stringent threshold requirement”. But judge Lee had applied an “erroneous line of reasoning”, and had “misconstrued … and misapprehended” the article and the threshold requirement, the ruling said. It said Lee had interpreted the clause to mean the court was required to believe the defendant would commit acts endangering national security in order to refuse bail, rather than needing to believe the defendant would not, in order to grant bail.

The national security charges against Lai relate to comments he made in interviews to foreign media and on social media, in opposition to the crackdown on the pro-democracy movement.