This Christmas will be the second that the highly respected media owner Jimmy Lai will spend in jail in Hong Kong.
The founder of Hong Kong’s once most popular newspaper, Apple Daily, Jimmy is the most high-profile figure to be arrested under the draconian National Security Law – a law passed in 2020 that effectively criminalises all meaningful opposition to the rule of the Chinese Communist Party in Hong Kong.
The case against Jimmy consists of spurious allegations of ‘colluding with foreign forces’ and ‘conspiracy to publish seditious publications’. One only needs to look at the evidence presented against Jimmy to see how far freedom of speech has declined in Hong Kong. The prosecution’s case file includes tweets sent by Jimmy tagging US House Speaker Nancy Pelosi and numerous critical articles published by Apple Daily.
This week Jimmy’s case suffered a further blow. The High Court announced that Jimmy’s trial will be further delayed until September 2023. By the time Jimmy’s trial begins, Jimmy will have spent almost 3 years in jail. If and when he is convicted, the septuagenarian will likely spend the rest of his life in prison.
The most recent delay is as a result of the Hong Kong government’s desperate attempts to stop Lai from being represented by British lawyer Tim Owen KC. Fearful of international scrutiny, Hong Kong’s Department of Justice has repeatedly challenged the right of Lai to seek international counsel. When the Court of Final Appeal rejected this challenge, the Hong Kong government proceeded to block Owen’s work visa.
Chief Executive John Lee has asked Beijing’s National People’s Congress for an interpretation on whether foreign lawyers like Owen can take part in National Security cases, arguing that they may not understand the law due to language issues. These claims are ludicrous. Hiring a British King’s Counsel for significant cases like Jimmy’s is a common practice in Hong Kong. Even the government used to hire overseas lawyers for important criminal and constitutional cases.
Jimmy’s case shows the lengths to which the Hong Kong government is seeking to undermine the professionalism of lawyers and independence of the judiciary. The request for Beijing’s National People’s Congress to rule on Owen’s case demonstrates how Hong Kong’s once world renowned legal system is losing its autonomy from Beijing. It is fast losing its credibility too.
Regardless of the result of Beijing’s decision on Owen’s case, the affair creates a chilling effect for both judges and lawyers in Hong Kong. Lawyers and judges will find themselves under pressure from Beijing if they represent unfavourable individuals or make rulings unfavourable to Beijing.
Jimmy’s case shows clearer than ever that the courts in Hong Kong have become a political tool for the Hong Kong authorities. Rule of law, judicial independence and the right to a fair trial should be respected. Hindering the access to a lawyer of choice is in violation with international human rights standards and the Hong Kong Basic Law. Despite this, several British judges continue to sit on Hong Kong’s Court of Final Appeal.
Originally the role of British judges in Hong Kong was intended to preserve the rule of law in Hong Kong after the end of colonial rule. Today, the National Security Law has made this rationale redundant. Overseas judges will never be chosen to handle the most politically sensitive national security cases. Rather than upholding the rule of law in Hong Kong, British judges are only serving as window dressing on a repressive authoritarian regime.
Two British judges serving at the Court of Final Appeal have already left this year. Remaining in the court will only be seen as “endorsing a regime that has abandoned the values of political participation and freedom of speech,” as the President of the UK Supreme Court, Robert Reed put it when he stepped down from the court.
The time has come for all British judges to step down from their role on Hong Kong’s courts, and in doing so shine a light on the horrific abuses that Jimmy and countless others have faced.
