The drawn-out prosecution of the pro-democracy newspaper proprietor on national security grounds has compromised the territory’s courts, reports The Times.
As a former British colony, Hong Kong practises common law, modelled on that of England and Wales. For decades, its courts were regarded as some of the most rigorous and independent in Asia. However, that reputation is now in question.
Jimmy Lai, a millionaire businessman who is famous is famous in Hong Kong as the proprietor of the Chinese-language newspaper Apple Daily, is facing two charges of “conspiracy to collude with foreign forces” and one of publishing “seditious” materials under a British colonial-era law.
Lai’s team accept that he engaged with foreign human rights organisations in pushing for sanctions. However, he did so only before the new law was promulgated in June 2020, when such activity was perfectly legal.
As for the charge of sedition, his lawyers claim the alleged offences amounted to no more than the expression of opinion, guaranteed under Hong Kong’s Basic Law.
After the territory was returned to China in 1997, Lai’s tabloid reported scathingly on both the Hong Kong government and the communist government of mainland China that controls it.
Lai supported the pro-democracy politicians who, despite support from most Hongkongers, were kept in a parliamentary minority. In 2019, when as many as two million people took to the streets in protest against the government, Lai used Apple Daily to support them.
As a result, he was one of the first targets of a draconian national security law imposed by the government of Beijing to supress dissent.
According to The Times, “In 2020, Lai, 76, was arrested and eventually charged with a series of crimes; his newspaper closed after the freezing of its bank accounts. Having been convicted of illegal assembly and fraud, he is now on trial for sedition over articles published in Apple Daily, and under the national security law, for allegedly calling for foreign sanctions on Hong Kong.”
Human rights organisations and Western governments have criticised the trial, tarnishing the reputation of Hong Kong’s judiciary.
“We still have the institutions — the rule of law is recognisably the common law,” said Jonathan Price, a British barrister who is part of a London-based team lobbying internationally on Lai’s behalf. “It’s adversarial, people wear wigs and gowns — it looks a bit like a trial. But you scratch the surface a little bit, and the whole thing is utterly preposterous.”
The Hong Kong government, composed exclusively of pro-Beijing politicians, insists that its courts continue to interpret and apply the law impartially and independently.
The time between Lai’s arrest under the security law and the beginning of his trial last December lasted more than three years. Critics say that the drawn-out process is a covert means of punishing defendants before they have been convicted.
A verdict is not expected before next year.
“Justice delayed is justice denied,” a Hong Kong human rights lawyer, who wished to remain unidentified, said. “The principle is if you arrest someone, you hurry up and try him.”
The right to bail unless there is a clear danger of flight, has also been eroded, with judges tacitly accepting the demand of the prosecution that security law defendants remain locked up on remand during their protracted trials.
“For a hundred years, Hong Kong never had a case of judicial corruption,” the human rights lawyer said. “In the colonial period, judges often defied the government’s wishes. But now we are all shaking our heads. No one believes they’re not doing what they’re told by Beijing.”
Although Hong Kong has a number of judges and barristers from other common law jurisdictions, none of them have been appointed to hear national security cases. In fact, Lai’s application to be represented in court by the British KC Timothy Owen was blocke.
Just last month, the British judge Lord Sumption became the third foreign judge to resign from Hong Kong’s highest court, warning that the territory was “slowly becoming a totalitarian state”
Lai is 76 and suffers from diabetes. If he is convicted under the national security law, he could receive a life sentence. However, after eight months, his trial is still only halfway through.
Overnight the judges retired to consider an application by the defence on Wednesday to dismiss the entire case on grounds that the evidence is too flimsy.
On Thursday, the judges rejected an application by the defence on Wednesday to dismiss the entire case on grounds that the evidence is too flimsy and said that defendant had “a case to answer on all charges”. Lai is due to testify in his own defence when the case resumes in November.
“It’s a show trial,” Lai’s son, Sebastien, exiled in Taiwan, said. “The mistake here is to think that Hong Kong still has the rule of law.”
