There are sound reasons why, wherever possible, the courts grant bail to criminal suspects. Anyone charged with an offence is presumed to be innocent until proven guilty, and people should not, save for good reason, be incarcerated prior to that. Cases, moreover, can take many months to come to trial, particularly if they are complicated, and it is, in general, undesirable that people should be deprived of their liberty for long periods, particularly when they may ultimately be acquitted.
As the Hong Kong Bill of Rights Ordinance recognizes, “It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial” (Article 5). What this means, therefore, is that bail is a right, not a privilege, and it will normally be granted to accused persons. However, presumption of bail notwithstanding, it is not an absolute right, and the circumstances may dictate otherwise.
But before a court can refuse bail, the Criminal Procedure Ordinance (Section 9G) requires it to identify “substantial grounds” for believing that there will be adverse consequences if it does so, and these include a failure “to surrender to custody as the court may appoint”. In determining whether somebody is likely to abscond, the court can have regard to such things as the nature and seriousness of the offence and the strength of the evidence, but also, crucially, given the high incidence of absconding among those charged with protest-related crimes, to the “background” and “associations” of the suspect. All too often, however, the “associations” of these suspects have either been downplayed by the courts, or not even ascertained, and this must change.
If somebody is allegedly involved in crimes linked to the social unrest, the chances are that he or she will have access to the protest movement’s support network, including, albeit indirectly, its overseas backup. After, for example, Brian Leung Kai-ping helped to destroy the Legislative Council Complex on July 1, 2019, he was whisked away to the United States, where he was received with open arms. Again, after two accused rioters, Ray Wong Toi-yeung and Alan Li Tung-sing, having been granted bail pending trial in the High Court, failed to appear, their escape to Germany was facilitated by foreign agents, and they obtained asylum there. Other criminal suspects, moreover, have tried to flee to Taiwan, with some succeeding, and others still have turned up in the United Kingdom, where they have been welcomed by, for example, Hong Kong Watch.
On any objective analysis, therefore, the bail system is being systematically abused, and the courts must now get real. Bail should be considered holistically, rather than in a blinkered way, taking full account of the existential risks of offenders absconding.
Several countries, moreover, led by the US, have recently suspended their extradition agreements with Hong Kong, while others, such as France, have frozen negotiations on fugitive surrender. These moves are calculated to encourage criminal suspects to flee, given that those countries will now no longer be under any legal obligation to return fugitives to face justice. This, quite clearly, is a development of which the courts must take judicial notice, and should be factored in when bail is being considered, particularly if an accused has any particular “associations” with any of those countries.
Elaborate, well-funded arrangements are now in place globally to assist anyone suspected or charged with a protest-related crime to escape, and there is now a powerful incentive to abscond. The courts must acknowledge this new reality, and cut their cloth accordingly. It is vital, therefore, before a suspect is granted bail, that a full inquiry is conducted to ascertain any “background” links he or she may have with those behind the social unrest, as well as any current “associations” with the protest movement, including its overseas backers.
It is only after a full risk assessment has been undertaken that a court will be in a position to conclude that a suspect can safely be granted bail. Although this will take extra time, and will be heavily reliant on police intelligence, it will be a worthwhile exercise. It will help to ensure that offenders are held accountable, and that criminal justice is not cheated.
If, however, the courts are prepared to grant bail, they must do far more than they do now to lessen the risk of absconding. Bail conditions must be realistic, not minimalist, given that the soft approach of some courts has obviously failed. If, for example, a magistrate grants bail to an accused rioter, or someone charged with harming a police officer, or a suspected secessionist, stringent terms must be imposed. Apart from requiring at least two substantial financial sureties, who undertake to ensure that the suspect will appear for trial, on pain of forfeiting their recognizances, the suspect must also be required to surrender all travel documents, and to live at a fixed abode.
Instead of weekly reporting to a police station, which is by no means uncommon, a suspect should be required to report thrice daily, at morning, midday and night, thereby ensuring that the time available for flight is minimized. Apart from the residential requirement, suspects must also be subject to home curfew, say, between 8 pm and 6 am. He or she must also be prohibited from communicating with particular individuals or organizations, most obviously those involved in protest-type activity or with links to foreign escape networks. Bail should also be conditional on the accused keeping away from particular places, most obviously ports and beach areas, as this will lessen the risk of abscondment by sea.
In Canada, moreover, Meng Wanzhou, who is currently contesting her extradition to the US, has been bailed on very strict terms. Apart from the usual bail terms and four sureties, Meng is required to wear a GPS tracker on her ankle, and is subject to 24-hour surveillance, provided by a private security firm. Electronic aids of this sort can obviously be a powerful disincentive to flight, and they would also be of value in protest-related cases here. After all, Hong Kong has been using tracker wristbands to geofence people under coronavirus quarantine, and the scheme can be readily adapted for use by the courts.
Once the judiciary tightens its approach to the granting of bail, the criminal justice system will be the big winner. The scandal of bail-jumping must be ended, with offenders appreciating that they will be held to account. It often takes a huge amount of police time to locate criminal suspects and assemble evidence, and their efforts must not be jeopardized by a bail system which is lackadaisical and out of touch with current realities.
The author is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
