Early in the morning, the guards come for Jimmy Lai, a 76-year-old publisher who has been in solitary confinement for the last three years. He is fed a prison breakfast, handcuffed, and taken in a van to court, where three judges and a prosecutor, who between them represent the flower of the English legal tradition, are conducting a show trial.
Hong Kong has seen its share of tragedy and farce since the British left in 1997, but the prosecution of this case is a new low in its descent into darkness under Chinese control and the perversion of the rule of law by people who were trained to uphold it.
Lai has committed no crime that would be recognised as such by any civilised government. He has never advocated violence, always acted peacefully, and is guilty only of optimism in thinking that words might one day defeat a police state. Yet he will probably be given a life sentence.
The formal charges against him include “sedition” and conspiracy to engage in “collusion with foreign forces”, the latest in a litany of flimsy or trumped-up examples of “lawfare” that have kept him behind bars for more than a thousand days.
His real offence, in the eyes of the Chinese regime, is to have published free speech through his top-selling tabloid newspaper, Apple Daily, and its digital editions, now shut down under the National Security Law imposed by Beijing on the former British colony in 2020.
Police stop activist Alexandra Wong, centre, also known as Grandma Wong, as she carries a union jack outside court— (AFP via Getty)
As a boy, Lai fled Mao’s China, made a fortune in the garment trade, then launched his media business and turned it into the loudest voice in support of democracy in Hong Kong. He could have escaped once again. Instead, he chose to stay through the city’s last mass movement in 2019, when he walked in the ranks of peaceful marches and studiously avoided the violent fringe of the protests. He did not resist when a special police unit came to arrest him.
Lai is a practising Roman Catholic and a British citizen. His faith has been strengthened in captivity and by the fearless Cardinal Joseph Zen, 91, who received him into the Church and dared to come to court in a show of support.
Late in the day, Britain’s foreign secretary, David Cameron, issued a statement condemning the trial and calling for Lai’s release. He must have known it would have no effect but to provoke the Chinese media into straight-faced denunciations of “blatant intervention” designed to undermine the rule of law. Nonetheless, it had to be done.
In practice, the British government has no power here. It has to strike a balance in dealing with a regime that practises hostage diplomacy and has thousands of British residents and businesses in China at its mercy. But the international legal profession can do much more to exercise the power of shame and ostracism, while the business community should realise what this trial means for them.
Let us examine the three judges who sit on the bench, each according to their official biography.
David Cameron has condemned the trial of Jimmy Lai— (AFP via Getty)
Judge Esther Toh studied law in the United Kingdom. She was called to the English Bar and the Hong Kong Bar in 1974 and 1975 respectively. Judge Susana Maria D’Almada Remedios obtained her LLB from the University of London and was called to the Bar in England (Inner Temple) in 1986. She also practised in Australia.
The third judge, Alex Lee Wan-tang, qualified in law at the University of Hong Kong and was appointed by the British colonial government as crown counsel in 1993, rising to become senior assistant director of public prosecutions before taking up his post as a judge in 2013.
Across the courtroom is the man prosecuting Jimmy Lai, the zealous acting deputy director of public prosecutions, Anthony Chau Tin-hang. He came up through the ranks of a service drilled in the spirit of English justice. He now argues that sentences in national security cases must have a deterrent effect.
In other words, everyone conducting this performance knows exactly what they are doing. They were all schooled in the majestic principles of common law, trained in a system that prided itself on impartiality, and knew that the Hong Kong courts were seen as a model for commercial arbitration and criminal cases across Asia. They really have no excuses.
The same can be said for the eminent foreign jurists, several of them British, who still sit as non-permanent judges on the Hong Kong Court of Final Appeal. The city’s leader, John Lee, a former police officer appointed by China, has called their presence a valuable source of legitimacy for the legal system. Let us not dwell on the matter of remuneration for part-time work in Hong Kong, where a permanent judge on the court earns more than £30,000 in a month.
Last year, the British judges, who no longer sit in their home courts, issued a statement in the wake of the resignation of two of their colleagues, saying that it was “more than ever important” to support the Hong Kong appeals courts “in their task of maintaining the rule of law and reviewing the acts of the executive”.
It is hard to see how this honourable, entirely unrealistic view can survive a sequence of trials that belong to the debased tradition of Stalin’s prosecutor Andrei Vyshinsky and his heirs in the communist judiciaries. The British judges should resign.
The last word will belong to Jimmy Lai, even if he is silenced for now. In 2007, the BBC invited him to a broadcast from Hong Kong to celebrate the 75th anniversary of the World Service. Going off-script, he grabbed the microphone and spoke directly to his compatriots in mainland China, telling them how important it is to uphold free speech. A member of the BBC team recalls it as an “electrifying moment”. The fame of a man like that will outlive any of those who sit in judgement on him today.
Michael Sheridan was a founding foreign correspondent and later diplomatic editor at The Independent. He is author of ‘The Gate to China: A New History of Hong Kong and the People’s Republic’ (2021) and is working on a biography of Xi Jinping – ‘The Red Emperor’ – to be published by Headline Books in 2024
