Pro-democracy media tycoon Jimmy Lai (R) is escorted into a Correctional Services van outside the Court of Final Appeal in Hong Kong on February 1, 2021.STR/Getty Images
When Beijing imposed a sweeping national security law on Hong Kong, following months of anti-government protests in 2019, officials repeatedly reassured people the legislation would not be retroactive.
Weeks after the law came into effect, police arrested media tycoon Jimmy Lai, accusing him of orchestrating an elaborate conspiracy to undermine the Hong Kong government, cheering on protesters and lobbying for international sanctions. If found guilty, the 76-year-old faces life in prison.
Since his trial began in December last year, the prosecution has spent 90 days of hearings – longer than the entire trial was expected to last – making its case, drawing on hours of testimony by former associates and employees of Mr. Lai, and reams of documents, including articles published in his pro-democracy newspaper Apple Daily, and the mogul’s private correspondence.
Almost all the actions described and evidence presented date from before the security law came into force on June 30, 2020. On Wednesday, the defence urged judges to throw the case out, arguing prosecutors had failed to show Mr. Lai ever broke the law under which he has been charged.
“There’s no evidence whatsoever,” said lead defence barrister Robert Pang.
During the 2019 protests, Mr. Lai – a longtime pro-democracy campaigner – pushed for international pressure against Hong Kong and China, both in the pages of Apple Daily and by leaning on connections in Washington and elsewhere. He also provided limited support to a protester-led publicity campaign that paid for ads in foreign newspapers, including The Globe and Mail.
No one disagrees this behaviour was legal prior to the security law, which only applies to “acts committed after its entry into force.” The principle against retroactive criminality is also protected by both Hong Kong and international law.
Prosecutors argue Mr. Lai is guilty of a criminal conspiracy that began before the security law came into force but then continued.
An impassioned Mr. Pang said this was false, arguing all the government has been able to describe in months of testimony was an agreement between Mr. Lai and others “to do something that was lawful,” with “not a hint of evidence” they intended to breach the security law.
“This ain’t what I signed up for,” he said, paraphrasing those allegedly involved. “Whatever was agreed previously, when calling for sanctions was perfectly lawful, was not agreed subsequently.”
In relation to allegedly seditious articles published in Apple Daily, Mr. Pang cited a previous ruling by Hong Kong’s Court of Final Appeal, which held that freedom of speech is “essential to Hong Kong’s civil society” and that the “right of fair comment is the most important element” of this.
Mr. Lai’s case is being heard by three national security judges hand-picked by Hong Kong’s leader, John Lee, to hear sensitive cases. At times, they appeared sympathetic to Mr. Pang’s arguments that any alleged conspiracy involving Mr. Lai was ended or fundamentally changed by the security law coming into force, but not that this was sufficient to make the argument of “no case to answer” – which would result in an acquittal without Mr. Lai having to present a full defence.
Several times during Wednesday’s hearing, both judges and prosecutor Anthony Chau said matters being argued were evidentiary and not points of law, and therefore should be “put before the jury.” This is a purely conceptual point however, as Mr. Lai’s case is not being heard by a jury, a break with decades of Hong Kong precedent enabled by the security law.
Jonathan Price, a British lawyer and member of Mr. Lai’s international legal team – which is not involved in the Hong Kong trial – said the case against him “amounts to nothing but smoke and mirrors.”
“All he did was run a newspaper and write editorials which reflected some of the pro-democracy views of the Hong Kong population,” Mr. Price added.
Hong Kong prosecutors have a near 100 per cent conviction rate under the national security law, and supporters of Mr. Lai have argued a guilty verdict is a foregone conclusion given how Chinese officials have painted him as the mastermind of the 2019 unrest.
Even a short sentence could amount to a life term for the septuagenarian, who suffers from diabetes and last month required an adjournment so he could receive medical attention. Mr. Price said Mr. Lai’s health was “a concern,” noting his client is “kept in solitary confinement for much of the time, in uncertain prison conditions.”
Mr. Lai appeared healthy Wednesday, sitting in a glass defendant box flanked by prison guards. He listened to proceedings impassively, wearing headphones and occasionally closing his eyes for periods, much as he has done for the last seven months.