Commencing this week, the court proceedings for the case Jimmy Lai, a pro-democracy media owner of Next Media and a mainstream Hong Kong newspaper Apple Daily, are underway. Hong Kong Watch, Human Rights Foundation, and The 29 Principles express their earnest appeal to the Government of the Hong Kong Special Administrative Region (“HKSAR”) and the People's Republic of China (“China”) to promptly undertake measures to uphold and safeguard the fundamental right to a fair trial for all.
In alignment with the tenets of human rights protection as articulated in the International Covenant of Civil and Political Rights (“ICCPR”), domesticated and fully binding in Hong Kong by virtue of the Hong Kong Bills of Rights Ordnance (“HKBORO”), we are deeply concerned about Jimmy Lai's rights and his access to justice. In fact, Article 4 of the Hong Kong National Security Law (“HKNSL”) clearly stipulates that the implementation of HKNSL is subject to the regulation of the ICCPR.
Of paramount concern of this case is its precedent-setting nature as a landmark case under the HKNSL. There is widespread concern regarding the potential erosion of rights to defendants tried under the HKNSL as the judiciary exercises the law against defendants, notably including the present prosecution against Jimmy Lai.
Article 2 of the ICCPR clearly states that everyone shall be presumed innocent until proved guilty, whereas Article 14(3)(b) of the ICCPR warrants defendants the right to have legal representation of own choice. In a communication issued in March 2023 to the HKSAR by experts in the UN Human Rights Office concerning Jimmy Lai’s case (AL CHN 1/2023), they all concerned about the deviation from the ICCPR as the HKSAR processed Jimmy Lai’s case.
In this statement, we contend that the legal proceedings in Jimmy Lai's prosecution substantially contravenes the HKSAR’s conventional obligation in upholding the ICCPR and other relevant laws in protecting his rights as supported by the following findings:
- Compromise of Presumption of Innocence: Despite the presumption of innocence being a foundational principle, Jimmy Lai was detained for three years before trial. In HKSAR v Jimmy Lai [2021] HKCFA 3, the Hong Kong Court of Final Appeal refused to grant bail to Jimmy Lai as they construed the bail test in the HKNSL with a heightened threshold than other criminal cases, with the test being the accused would not continue to commit acts endangering national security. This essentially displaced the principle of presumption of innocence in common law, as now presumption of innocence is placed only as the second step in consideration of bail. Such construction of the word “continue” also implies that Jimmy Lai had already committed the crime. This completely violates the principle of presumption of innocence.
- Limitation of being represented by lawyer of own choice: In December 2022, to limit Jimmy Lai’s free choice of legal representatives, the HKSAR Government sought intervention from the Central People Government to undo the ruling of the city’s Court of Final Appeal in favour of Jimmy Lai. As a result, British barrister Tim Owen KC was barred from representing Jimmy Lai despite the favourable judgment from the city’s highest court (Secretary for Justice v Timothy Wynn Owen KC [2022] HKCFA 23). Other members of Jimmy Lai’s legal team were subject to intimidation, receiving threats of violence, sexual violence and even death threats for their legal representation of Jimmy Lai - a concern shared by the by the UN human rights experts in the aforementioned communication.
In light of these concerns, we strongly urge the HKSAR and China to immediately address the following recommendations to safeguard judicial independence:
Recommendations
- Uphold Jimmy Lai's right to be presumed innocent and to be entitled to a fair trial in compliance with due process.
- Ensure that legal procedures for future national security law cases adhere to similar universal basic principles for fair trials
Hong Kong Watch
Human Rights Foundation
The 29 Principles