A number of recent trials and sentences have shown the full force of Hong Kong’s National Security Law (NSL), which was passed in 2020. On 19 November, over 40 figures involved in the territory’s pro-democracy movement were sentenced on subversion charges under the NSL.
In the same week, another high-profile pro-democracy figure, British citizen Jimmy Lai, testified in court. He has pleaded not guilty to alleged ‘collusion with foreign forces’ and sedition in relation to the newspaper he published, Apple Daily, which closed in 2021 amid the crackdown on pro-democracy protests in Hong Kong.
Lai, almost 77 years of age and a diabetic, has been placed in solitary confinement since December 2020. He’s already serving a sentence of five years and nine months after being convicted of violating a lease contract for his newspaper’s headquarters, having previously completed a jail term for taking part in protests and unauthorised assemblies.
A spokesperson for China’s foreign ministry has referred to Lai as the ‘main plotter and participant of the anti-China chaos in Hong Kong’ and Prosecutor Anthony Chau described him as using ‘the guise of fighting for freedom and democracy’ to request that foreign countries, in particular the US, impose sanctions or engage in other hostile activities against Hong Kong and China.
However, Caoilfhionn Gallagher KC, a barrister at Doughty Street Chambers in London, says the allegations against him are a result of ‘entirely peaceful activity supporting democracy and commemorating those killed in the Tiananmen Square massacre’. Gallagher, who’s also Co-Vice Chair of the IBA Media Law Committee, is leading the international legal team representing Lai and his son Sebastien, who’s fighting for his father’s release.
Lai’s trial has been significantly delayed, firstly because the Court said the prosecution wasn’t ready, and later because there were issues scheduling a time to reconvene the case. ‘The court delays are not the sort you would see in a properly functioning rule of law compliant judicial system,’ says Jonathan Price, a barrister and Head of the Media Team at Doughty Street Chambers, who’s also representing Lai.
We are well into the deterioration of press freedom and the rule of law in Hong Kong
Jonathan Price
Barrister, Doughty Street Chambers
In September, two editors at the now-defunct Stand News media outlet in Hong Kong were sentenced for their roles in reporting, editing and publishing articles that the Wan Chai District Court ruled had ‘seditious intentions’.
This was the first sedition case against journalists in Hong Kong since the territory’s handover from Britain to China in 1997. ‘This verdict will send shockwaves through Hong Kong newsrooms as well as international news organisations with bureaus in the city, as they seek to understand whether their day-to-day operations could be in violation of Hong Kong law,’ said the Foreign Correspondents’ Club in a statement. ‘People can see where this is going,’ says Price. ‘It is a symptom of the problem, but it is not the beginning I’m afraid. We are well into this deterioration of press freedom and the rule of law in Hong Kong.’
Since the introduction of the NSL, many media outlets have closed operations in Hong Kong. Stand News was among the last openly pro-democratic publications until its closure in late 2021. ‘With China, you are dealing with a country that has no separation of powers and where allegiance is not to the rule of law but to the Chinese Communist Party,’ says Ravi Madasamy, LGBTQI+ Liaison Officer on the IBA Human Rights Law Committee and recipient of the 2023 IBA Award for Outstanding Contribution by a Legal Practitioner to Human Rights for his work in Singapore.
In June, following Lord Jonathan Sumption’s assertion that the rule of law in Hong Kong had been profoundly compromised – which he made after resigning from the Hong Kong Court of Final Appeal – the territory’s Chief Executive John Lee accused some UK officials and legislators of trying to ‘weaponise’ the country’s judicial influence to target China and Hong Kong.
‘It has become a bit of a hackneyed expression to talk about people weaponising the law,’ says Price. ‘Law is always weaponised by one side or another.’ He adds that the phrase had been used in relation to some of his other clients who have found themselves, he says, on the wrong end of an authoritarian government that wants to appear compliant with the rule of law and so uses the law against them. ‘It’s common unfortunately and that is exactly what they’ve done against Jimmy Lai’, says Price.
Lai’s sentence of five years and nine months was for an alleged discrepancy in his accounting structures, says Price. ‘They said he had misapplied rent from a third-party company within the building that the media company owned and rented. So, ostensibly, they’ve used the law, but they’ve used it for nefarious purposes.’
However, Grenville Cross SC, an honorary visiting professor at the Chinese University of Hong Kong and former Director of Public Prosecutions in the territory, wrote an open letter in January to the UK government, commenting on the Lai case. In it, he argued that ‘Hong Kong treasures its rule of law’ and rejected suggestions that Lai’s prosecution is politically motivated.
‘In deciding whether to initiate a prosecution,’ he wrote, ‘the DoJ’s [Department of Justice] prosecutors, like their counterparts in the Crown Prosecution Service of England and Wales […] apply the traditional common law criteria. They must be satisfied, firstly, that the evidence affords a reasonable prospect of conviction, and, secondly, that it is in the public interest to prosecute. Quite clearly, if prosecutors were to bring prosecutions which lacked a proper evidential foundation, they would collapse at court, and this is why potential prosecutions are always vetted so carefully.’
Cross added that the three professional judges trying Lai undertook, in their judicial oath, to administer justice ‘without fear or favour, self-interest or deceit’ and that Lai ‘will only be convicted if his guilt has been proved beyond reasonable doubt, the test applied in other common law jurisdictions.’
Lai’s ‘commercial’ charge of fraud is consistent with the NSL, which empowers the executive to immediately investigate, by, for example, seizing data assets, any person or entity in Hong Kong on a mere suspicion basis – ie, the executive doesn’t need judicial oversight. And it’s starting to worry not only states and governments – the US Treasury issued in September an enhanced business risk notice for Hong Kong – but also companies and law firms. ‘I think of myself as a businessman and if this is happening to Jimmy Lai then trumped-up charges can happen against me as well,’ says Madasamy. ‘As someone who is doing human rights work in the region, I will definitely not want to have meetings in Hong Kong.’
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