Hong Kong’s high court has rejected an attempt by lawyers acting for the jailed pro-democracy activist Jimmy Lai to have his national security trial dismissed.
The court ruled on Monday that the argument the trial may appear to be biased had “no merits”, and gave the proceedings, which are scheduled to start in September, the green light.
The legal team for Lai, a former media mogul who was arrested during Beijing’s crackdown on pro-democracy protests in 2020, had argued that the fact his trial would be presided over by judges hand-picked by the chief executive undermined the neutrality of the court.
Lai is also embroiled in a legal battle over whether or not he can be represented by Tim Owen KC, a top British barrister.
On 19 May, Hong Kong’s high court rejected an attempt by Lai’s legal team to challenge a decision by city authorities to bar Owen from representing Lai. That decision can still be appealed.
The government was granted that power just days earlier, when the legislature passed an amendment giving the city’s leader the power to veto foreign lawyers from working on national security cases.
That amendment enshrined a ruling from Beijing issued in December. Critics say that the involvement of the chief executive in approving lawyers violates the independence of the legal system, and leaves defendants in sensitive cases with few options for representation.
Hong Kong, a former British colony, has a legal system that is based on English common law. Defendants and prosecutors have long called on foreign lawyers in a range of civil and criminal proceedings.
Lai is the founder of the now defunct Apple Daily, a vocal pro-democracy newspaper that was forced to close after the Chinese Communist party (CCP) tightened its grip on the city. In July 2020, the government imposed a national security law which effectively closed down legal avenues for criticising the authorities.
In 2021, John Lee, Hong Kong’s chief executive, who was at the time secretary for security, referred to Apple Daily journalists as “criminals who make use of journalistic work as a tool to further their criminal activities”. Lai’s lawyers argued that Lee’s role in picking judges for Lai’s case could therefore seem biased. But on Monday, the high court ruled that the chief executive “has not been given a complete free rein as to who can be appointed as designated judges”, because recommendations are made by an advisory body.
Lai has long been an outspoken critic of the CCP. In August 2020 he was arrested and charged with foreign collusion under the national security law, which could result in a life sentence. The trial is scheduled for September, by which time he will have spent nearly 1,000 days in jail.
Before the legal amendment this month, Hong Kong’s courts had rejected the government’s attempts to block Owen from representing Lai.
Mark Clifford, a friend of Lai’s and a former director of Apple Daily’s parent company, said: “The Hong Kong government’s inability to accept court rulings shows that promises of a territory ruled by law have been broken.”
A Hong Kong government spokesperson said: “All judges and judicial officers have all along been abiding by the judicial oath which requires them to administer justice in strict accordance with the law, without fear or favour, self-interest or deceit … This has not changed (and will not change) regardless of whether judges are dealing with national security cases or any other cases arising from or involving political controversies.”
They added that the interpretation from China’s government in December “did not in any way impair the independent judicial power and the power of final adjudication of the Hong Kong courts”.
“The interpretation did not confer additional power on the chief executive … Owing to the inherent nature of matters concerning national security, the executive authority is in a far better position than the courts to make appropriate judgments.”
The saga over whether or not Lai can appoint a British lawyer reflects the tensions in Hong Kong’s legal system, which was once regarded as the most robust in Asia. Last year the UK government said that the erosion of freedoms after the passage of the national security law meant that the situation had reached a “tipping point” where it was no longer tenable for UK judges to sit on Hong Kong’s highest court. Six British judges are still in post on a part-time basis.
On 25 May, the UK government published its six-monthly report on the former colony, which said that Hong Kong’s common law system “remained under pressure”. It said that the national security law “continues to damage Hong Kong’s way of life”. Hong Kong’s government said that it “firmly rejected the slandering remarks”.
