Anyone who is lawfully arrested shall have the right to a fair trial by the judicial organs without delay and shall be presumed innocent until convicted by the judicial organs.– Article 87 of the Basic Law.
By mid-January, more than 7,000 people had been arrested in connection with the anti-extradition law demonstrations since they began last June. Nearly 400 were released as insufficient evidence could be found. Of those 1,000 who have been taken before a court so far, most of them were released on bail after the prosecutors requested a postponement for further police investigations.
So, in the name of searching for evidence, cases have been delayed by the police and prosecutors. During this period, the defendants are required to abide by bail conditions which restrict their individual liberty and rights. Unreasonable and unjustified conditions, for these – still – innocent people, are an unfair punishment.
Nicholas Blomley, a geographer, and two legal scholars, Marie-Eve Sylvestre and Céline Bellot, recently published a new book Red Zones, discussing the abuse of bail conditions from the perspective of legal geography. Hong Kong should learn from their findings.
Their research, based on the Canadian experience, has not only enriched academic knowledge, but also invoked democratic discussion and forced the state to tackle the injustice by initiating a series of legal reforms, with new prosecutors’ guidelines and a new Act in the Parliament.
Conventional wisdom is that, under the presumption of innocence, court-imposed bail is the legal right of the defendants as long as they promise to appear before the court on time. Balancing the public interest and the defendants’ rights, the court may impose some conditions of release, including curfews and “no-go” conditions, to reduce the risk of further crimes.
Practically speaking, bail conditions have become a norm in criminal justice procedures, sometimes as a punitive measure. Those conditions put the state interest before individual liberty, and allow police power to override individual rights.
According to the book, spatial restrictions are the most common bail condition in Canada. The red zones not only include the locations where the offence allegedly occurred, but also a much larger area – say, the whole of downtown – which has no direct relation with the case itself.
These conditions are sometimes too broad, without justification, spatially excluding the defendants from the places where they can get access to jobs, daily life and public services. The book presents case analyses and interviews with prosecutors and judges, revealing that these legal actors may not have realised the serious consequences of these territorial bail conditions on the defendants, because of the bureaucratic and routinised way cases are handled.
Policing rationale dominates the bail procedure. Prosecutors work with the papers submitted by the police, and rely on them to propose bail conditions. The role of the court is relatively passive in the common law tradition, so it tends to adopt the suggestions. The defendants do not have much say.
Will all those arrested be prosecuted?
Philip Dykes, the Chair of Hong Kong Bar Association, recently said, “public interest plays a part in the decision-making process too, so that individuals or some classes of cases will not end up in court, even though there is a strong case against them”. Prosecutors should not bring citizens to trial unless it is legally justified, every lawyer would agree.
But in view of the massive number of arrests in Hong Kong today, the administration has started many prosecutions before the evidence has been gathered. In this scenario, the court has no choice but to postpone the case as the prosecutor wishes.
The bailed defendants have to face pressure from public, friends and family. They may also have their jobs lost or suspended, especially if they are government employees. In addition to the consequences of the prosecutions, the bail conditions further violate the defendants’ personal freedom and rights.
The situation is particularly serious when the prosecution is withdrawn. Recently, a defendant who was accused of having possessed an instrument fit for unlawful purposes, was released on bail after the first mention in early November. In late December, he appeared for the trial but the prosecutor withdrew the charges. For nearly two months, this innocent person had lost his freedom as he was forbidden to leave Hong Kong, required to report to a police station weekly, and to observe a curfew.
The spatial politics of bail conditions
As the book insightfully explains, bail conditions have two effects: the conditions cut the defendants from their living environment and join them to the network of policing control and surveillance.
When focusing on political activists, the researchers found that the bail conditions proposed to the court have underlying political motives. Rather than the claims of crime prevention or public interest, they are intended to control political dissent and maintain the government’s authority.
The government does not explicitly attack the fundamental right to freedom of expression, but suppresses protests by interfering with the movements of activists.
In Hong Kong, in December a court imposed a condition on a defendant which barred him from all the shopping malls in the territory. In mid-January, a court imposed a set of bail conditions on a restaurant manager, until a trial date in late February. These included a curfew between 7pm and 9am, a daily report to the police station, and a “no-go” area consisting of Yau Tsim Mong, Central and Western, and Wan Chai districts, the broad city centre of Hong Kong.
It is observable that, while the police routinely arrest people for little more than being on the street, bail conditions are becoming more restrictive. Does the magistrate consider the job duties and living needs of the defendants? Do we forget they are innocent at the moment?
According to Red Zones, prioritising policing needs when considering bail conditions violates the intention of bail as a legal right. Bail conditions are not supposed to facilitate surveillance.
Regrettably, a high court judge has recently suggested the government should consider employing technology to monitor the defendants released on bail. This is severely worrying.
What should be done?
The urgent question is how to curtail the government power to abuse the law. Red Zones brought legal reforms in Canada; those who are interested in the details should read the book.
But some vital guiding principles are that area restrictions should be tailored to each case and defendant, that prosecutors should discuss with the defendants’ counsel and public service providers beyond the police, and that the law enforcement and prosecution departments should think carefully before making bail decisions.
The judicial crisis caused by large-scale arrests and prosecutions in Hong Kong is a real concern. Yet, society should never compromise on the fundamental principles of the rule of law, notably the presumption of innocence.
At the end of the day, if those in power abuse it, this crisis could only worsen.