Date: 23 March 2023
Introduction
The 29 Principles is writing to provide information regarding the prosecution of Jimmy Lai. The focus of our submission is on the stringent enforcement of the Hong Kong National Security Law (“HKNSL”) against Jimmy Lai. Our submission to demonstrates that the HKSAR Government and the Chinese regime exercise severely coercive measures against individuals, notably Jimmy Lai, whose promotion of the freedom of expression and media pluralism may reveal the wrongdoing of the regime.
Discussion
As discussed by APPG and different reports, Jimmy Lai has been refused bail and remained in detention for a prolonged duration since December 2020 after he was prosecuted with multiple offences, including one charge of “collusion with a foreign country or with external elements to endanger national security” which was promulgated in the HKNSL. In HKSAR v Lai Chee Ying [2021] HKCFA 3, the media tycoon sought to appeal the decision of the refusal of bail to the city’s highest court, but the Court of Final Appeal constructed the bail test in the HKNSL with a threshold that the accused would not continue to commit acts endangering national security.
This, in essence, displaced the long-entrenched principle of the presumption of innocence in common law, as now presumption of innocence is placed only as the second step in consideration of bail. The first step becomes determining whether the defendant will continue to endanger national security. The construction of the word “continue” implies that the defendant has already committed the crime, save to mention that the determination is vague if not capricious. Substantively speaking, the effect of this case essentially means Jimmy Lai, the most prominent media tycoon who believes in and promotes freedom of expression and media pluralism, was subjected to stringent measures and prolonged confinement. Such information is well-covered by groups such as Oxford Human Rights Hub and other organisations. Here, the 29 Principles would like to further supplement their concerns regarding the restriction on Jimmy Lai’s appointment of foreign lawyers to represent him in his upcoming HKNSL trial.
Jimmy Lai’s intention to appoint British barristers was heavily challenged by the Hong Kong SAR Government. It sought to dispute the appointment through the judiciary. In November 2022, the city’s Court of Final Appeal ruled in favour of Tim Owen KC, stating that the HKNSL, aligning with the general practice of the territory, does not prohibit the defendants from appointing foreign lawyers. Aggrieved by the decision, in November 2022, the Hong Kong SAR Government sought to have the decision overruled by inviting China’s National People’s Congress Standing Committee to intervene by providing an interpretation of the HKNSL. In December 2022, the Standing Committee handed down the interpretation, warranting the Chief Executive and the Committee for Safeguarding National Security of the Hong Kong SAR to exercise freestanding discretion on the matter.
As pointed out in the joint statement that the 29 Principles previously issued together with other organisations, the Hong Kong SAR Government’s interference seriously undermined Hong Kong’s autonomy as a special administrative region and the independence of the legal profession in Hong Kong. It sought to undo a final and binding court’s decision. Pursuant to the interpretation, Jimmy Lai and other future defendants would have their choice of lawyers substantially limited. The 29 Principles would like to emphasise that local lawyers likely experience tremendous pressure against taking on these cases given the political nature of HKNSL cases. Such a chilling effect induced by the HKNSL and its implementation constitute a serious restriction of access to justice.
What these actions clearly indicate is that the regime is sparing no effort to ensure that Jimmy Lai and his media company (whose stance did not align with the Government) are to be subjected to severe restriction and legal punishment. As shown in the above information concerning the media tycoon, from the refusal of bail to his appointment of lawyers, the Hong Kong SAR Government is ensuring Jimmy Lai’s loss of freedom on every possible front.
Similar patterns of stringent enforcement can similarly be shown regarding the case of Stand News, an independent and non-profit media company which was frequently rated as the most credible media outlet in Hong Kong. In December 2021, the operation of Stand News was abruptly halted when the National Security Department of the Hong Kong Police Force suddenly froze its assets, raided its office and arrested leading members in Stand News – an action which was greatly condemned by the UN Human Rights Office. Chung Pui-kuen and Patrick Lam, the former chief editor and former acting chief editor of Stand News, were subsequently prosecuted for conspiring to “publish seditious publications”. Both Chung and Lam were only granted bail after nearly spending a year in remand.
Summary
Since the promulgation of the HKNSL, freedom of expression and medial pluralism in Hong Kong experience severe headwinds. A list constructed by Hong Kong Free Press shows that there are numerous events happening nearly in every month which undermines press freedom in the territory. This submission only includes the tip of the iceberg.
The information provided reveals a troubling trend in Hong Kong where people who advocate for freedom of expression and media diversity face severe legal repercussions under the highly restrictive HKNSL. Notably, Jimmy Lai and Chung Pui-kuen are representative figures who have been targeted for their efforts to promote these values. The enforcement of the HKNSL is a clear indication that the government's commitment to these fundamental values is eroding rapidly.
The 29 Principles seeks to raise awareness of the risks and negative consequences that are faced by those who advocate for freedom of expression and media pluralism in Hong Kong. It highlights the urgent need for access to justice for those whose rights are being suppressed by the HKNSL. The current situation in Hong Kong underscores the critical importance of protecting the rights of individuals to express themselves freely and to access justice when their rights are violated.