Introduction 1. Article 42(2) of the National Security Law (“NSL 42(2)” and “NSL” respectively) provides: “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.” 2. On 12 December 2020, the respondent, Mr Lai Chee Ying, was arrested and charged with one count of “collusion with a foreign country or with external elements to endanger national security”, that being an offence under Article 29(4) of the NSL. The Chief Magistrate, Mr Victor So, refused bail and remanded the respondent in custody. 3. On 23 December 2020, the respondent applied to the Court of First Instance (“CFI”) for a review of the magistrate’s refusal of bail. This review was heard by a judge of the CFI (Alex Lee J), who granted the respondent bail against undertakings offered by the respondent not to engage in certain conduct and activities that might be regarded as the offence of collusion under the NSL and on other conditions governing matters including where the respondent would reside and requiring the surrender of his travel documents. 4. In granting bail, the Judge applied legal principles derived from earlier decisions, in particular Tong Ying Kit v HKSAR (“Tong (No.1)”) [2020] 4 HKLRD 382 and HKSAR v Tong Ying Kit (“Tong (No.2)”) [2020] 4 HKLRD 416 decided in August 2020 concerning the interpretation and application of NSL 42(2). 5. On 31 December 2020, on its application, the prosecution was granted leave to appeal to the Court of Final Appeal against the Judge’s grant of bail to the respondent to raise an important point of law, namely “What is the correct interpretation of NSL 42(2)?” 6. The Court held that the determination of the meaning and effect of NSL 42(2) required that the provision be examined in the light of the context and purpose of the NSL as a whole, taking into account the constitutional basis on which the NSL is applied in the Hong Kong Special Administrative Region (“HKSAR”). Jurisdiction 7. In examining the formulation and application of the NSL to the HKSAR, the Court noted the absence of locally enacted national security legislation as constitutionally required by Article 23 of the Basic Law and the serious and prolonged disturbances to public order and challenges to the authority of the HKSAR and PRC governments in recent months. In view of this, the Central Authorities had decided to take the enactment of such legislation into their own hands, which they did by a Decision of the National People’s Congress (“NPC”) dated 28 May 2020 (“the 5.28 Decision”) entrusting the NPC Standing Committee (“NPCSC”) to formulate the relevant laws and determine whether to include them in Annex III of the Basic Law as a national law having application in the HKSAR. The draft law was presented to the NPCSC on 18 June 2020 which decided that it should be added to the list of laws in Annex III of the Basic Law, since safeguarding national security is a matter within the purview of the Central Authorities. On 30 June 2020, the NPCSC duly decided to add the NSL to the list of laws in Annex III of the Basic Law to be applied locally by way of promulgation by the HKSAR. The Chief Executive duly promulgated the NSL by giving notice that the NSL would apply in the HKSAR as from 11pm on 30 June 2020. 8. The Court noted that promulgation of the NSL as a law of the HKSAR was the product of the NPC’s 5.28 Decision and the NPCSC’s formulation and listing of the NSL in Annex III of the Basic Law, done in accordance with Articles 18(2) and 18(3) of the Basic Law on the footing that safeguarding national security is a matter outside the limits of the HKSAR’s autonomy and within the purview of the Central Authorities, the Central People’s Government having an overarching responsibility for national security affairs relating to the HKSAR. 9. The Court held that, in the light of the Court of Final Appeal’s decision in Ng Ka Ling v Director of Immigration (No.2) (1999) 2 HKCFAR 141, the legislative acts of the NPC and NPCSC leading to the promulgation of the NSL as a law of the HKSAR, done in accordance with the provisions of the Basic Law and the procedure therein, are not subject to review on the basis of any alleged incompatibility as between the NSL and the Basic Law or the International Covenant on Civil and Political Rights as applied to Hong Kong. 10. Accordingly, the respondent’s argument, that, insofar as NSL 42(2) places a burden on the accused that bail should be granted, it derogates from constitutionally protected rights, including the right to bail and the right to personal liberty, so that unless justified must be remedially interpreted so as to place a burden on the prosecution instead, was rejected for lack of jurisdiction. The proper construction of NSL 42(2) 11. NSL 42(2), construed in context, envisaged that bail might be granted in cases involving offences of endangering national security and that, in respect of such offences, the laws of the HKSAR shall apply to procedural matters. 12. Although there was no power to hold any provision of the NSL to be unconstitutional or invalid as incompatible with the Basic Law and Hong Kong Bill of Rights (“HKBOR”), Articles 4 and 5 of the NSL expressly stipulate that those rights, freedoms and values are to be protected and adhered to in applying the NSL. The Court held that, as far as possible, NSL 42(2) is to be given a meaning and effect compatible with those rights, freedoms and values. Save insofar as NSL 42(2) constitutes a specific exception thereto, that body of law, comprising not only the human rights and rule of law principles but also the generally applicable HKSAR rules governing the grant or refusal of bail, is intended to have continued effect in NSL cases as part of a coherent whole. 13. The Court held that NSL 42(2) creates such a specific exception to the general rule in favour of the grant of bail and imports a stringent threshold requirement for bail applications. 14. In applying NSL 42(2) when dealing with bail applications in cases involving offences endangering national security, the judge must first decide whether he or she “has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security”. In doing so: (1) The judge should consider everything that appears to the court to be relevant to making that decision, including the possible imposition of appropriate bail conditions and materials which would not be admissible as evidence at the trial. (2) The judge should take the reference to “acts endangering national security” to mean acts of that nature capable of constituting an offence under the NSL or the laws of the HKSAR safeguarding national security. (3) The judge should regard the NSL 42(2) “sufficient grounds” question as a matter for the court’s evaluation and judgment and not as involving the application of a burden of proof. 15. If, having taken into account all relevant material, the judge concludes that he or she does not have sufficient grounds for believing that the accused will not continue to commit acts endangering national security, bail must be refused. 16. If, on the other hand, the judge concludes that taking all relevant material into account, he or she does have sufficient grounds, the court should proceed to consider all other matters relevant to the grant or refusal of bail, applying the presumption in favour of bail. This includes consideration of whether there are substantial grounds for believing that the accused would fail to surrender to custody, or commit an offence (not limited to national security offences) while on bail, or interfere with a witness or pervert or obstruct the course of justice. Consideration should also be given to whether conditions aimed at securing that such violations will not occur ought to be imposed. Errors in the Judge’s decision 17. In granting the respondent bail, the Judge applied legal principles derived from Tong (No.1) and Tong (No.2) which were wrong as a matter of law. The judgment in Tong (No.1) erroneously eliminated the more stringent threshold requirement intentionally imposed by NSL 42(2) as a specific exception to the general principles regarding bail, instead imposing a positive requirement that the court has to be satisfied that there do exist grounds to believe that the accused will continue to commit acts endangering national security as a basis for refusing bail. Consequently, the court in Tong (No.1), applied in Tong (No.2), erroneously treated NSL 42(2) as having hardly any impact on the generally applicable bail regime under the Criminal Procedure Ordinance (“the CPO”). 18. In the Judge’s ruling granting bail to the respondent, he applied this erroneous line of reasoning and his approach was clearly inconsistent with the Court’s analysis in this judgment and could not be supported. The Judge misconstrued NSL 42(2) and misapprehended the nature and effect of the threshold requirement created. Although he purported to apply the correct legal test, the Judge in fact adopted an erroneous approach by eliding the NSL 42(2) question with the discretionary considerations set out in the CPO and never made a proper assessment under NSL 42(2). Conclusion 19. The appeal was accordingly allowed and the Judge’s decision to grant the respondent bail set aside. 20. As had been noted when the Appeal Committee granted leave to appeal, the question before the Court was of a limited nature. If so advised, the respondent might make a fresh application for a review of the Chief Magistrate’s refusal of bail, but it fell outside the jurisdiction of the Court to conduct such a review. In the meantime, the respondent would be remanded in custody.