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ABC News
ABC News
National
By Wing Kuang

Jimmy Lai has been China's target for decades. Now a small change to Hong Kong's legal tradition could see him jailed for life

In Hong Kong, many still remember the shocking scene of their beloved media mogul Jimmy Lai heading to court to face charges of foreign collusion.

In 2020, the then 73-year-old was handcuffed and led with a chain by a masked policeman, with another three officers surrounding him on his way to the court bus.

Mr Lai, the founder of Hong Kong's most popular pro-democracy newspaper Apple Daily, was arrested at his home in August 2020 on suspicion of "collusion with foreign forces" and conspiracy to commit fraud. 

He will face trial today on the national security charge, but already Mr Lai, who also holds UK nationality, has been sentenced to 20 months in jail over his participation in pro-democracy protests in 2019.

On Saturday, Mr Lai also faced trial over business fraud allegations and was sentenced to five years and nine months in prison.

This week he was supposed to face trial in what was regarded as a fresh test of Hong Kong's two-year-old national security law, which had been brought in by Beijing and outlawed secessionist activities as well as "foreign collusion".

To date, the billionaire media mogul is the most high-profile figure to be arrested under the law and face life in prison if convicted.

But today the court postponed the case to late September next year.

The media giant that Beijing tried to bring down for decades

On the same day Mr Lai was arrested in 2020, his newspaper offices were raided by 200 police officers.

They spent eight hours in Apple Daily's building, reportedly searching journalists' desks and taking away computers and documents.

Despite Mr Lai's absence and the blitz on their newsroom, Apple Daily was still able to maintain its daily operation until June 2021, when Hong Kong police launched another raid with over 500 police officers.

They also arrested five senior editorial staff at their homes and froze the company's assets worth 18 million Hong Kong dollars ($3.4 million).

The company was left with no other choice but to shut down.

In the eyes of Beijing, Mr Lai and his 26-year-old newspaper presented a great enough threat to its power that a huge police force and a new security law were required to take him down.

Mr Lai has been a famous critic of the Chinese Communist Party since the 1990s and attended a vigil of Tiananmen protests in Hong Kong.

He supported the mass pro-democracy rallies in Hong Kong in 2014 and 2019, and his outlets extensively reported on police violence against protesters.

He also met with former US vice president Mike Pence and secretary of state Mike Pompeo in 2019 over the protests.

Lai could be undone by a sudden change to legal tradition

In October, the wealthy businessman hired a prominent lawyer with experience in international law and human rights cases to represent him in court: British King's Counsel Timothy Wynn Owen.

The hiring of British King's Counsels for significant cases is a common practice in Hong Kong, according to a Hong Kong lawyer and pro-democracy activist Kevin Yam, who now lives in Australia.

"In fact, even the government used to bring them in for big criminal or constitutional cases to act for them," Mr Yam said.

Mr Lai's hiring was under permission of the court, yet strongly opposed by the Hong Kong government.

Beijing has allowed Hong Kong to keep its Common Law system, with the hope of the city becoming its connection to the West to attract foreign investments.

But in November, after three failed appeals to Hong Kong's Court of Final Appeal to reverse the hiring, the city's Chief Executive John Lee turned to Beijing for intervention for the first time since the new law was implemented.

He requested China's highest legislature body to address whether the national security law allows an "overseas solicitor or barrister who is not qualified to practise generally in Hong Kong" to participate in cases relating to national security.

The Hong Kong government also withheld Mr Owen's working visa, while requesting a delay of the trial to December 13 to wait for the issue from Beijing.

According to Chinese state media, the reason cited by the Hong Kong government to oppose Mr Lai's British lawyer is their concern foreign lawyers "may not fully understand" the national security law.

It states the national security law is written in Chinese, and its English version is merely a "reference" for legal professionals.

It also stresses that to understand the legal concept of national security, one must also understand "[China's] central government and Hong Kong's social and political contexts as well as constitutions".

"Legal representatives from overseas may not fully understand the unique background of the central government and Hong Kong SAR," the report said.

Legal changes could have a 'chilling effect' on lawyers

Back in 2020 when the sweeping national security law was launched, the international legal community was concerned by what they saw as "a lot of grey areas" in the law.

According to the law, individuals based overseas can still be subjected to its codes. 

Chinese state media also cited Feilong Tian, a Chinese legal scholar and member of state-backed Chinese Association of Hong Kong and Macao Studies, who criticised Hong Kong's Court of Final Appeal for being "irresponsible".

Eric Yan-ho Lai, a non-resident fellow in the Centre for Asian Law at Georgetown University, said these opinions undermine the professionalism of lawyers.

"We are in a modern age that appreciates the rule of law, judicial independence and the rights to fair trial," Dr Lai said.

"[This includes] access to a lawyer of choice following international human rights standards, which are also guaranteed by Hong Kong's Basic Law." 

Although the government's call on removing foreign lawyers is only on national security trials so far, Dr Lai says it could create "a chilling effect" for both judges and lawyers in Hong Kong.

"[They] would realise that Beijing would not cease to intervene in local courts as long as they make rulings unfavourable to Beijing," he said.

Mr Yam also said while it is too early to state the impacts of this proposed ban on cases not related to national security laws, it still "sent a signal" to the international legal community.

"I think the bigger issue is whether this might be the start of a wider trend [of banning foreign lawyers], and I think that will take some years to flush out."

The trial of Hong Kong's future

For years, Australian legal professionals have been involved with the legal system of Hong Kong, which is also Australia's largest business base in Asia.

Currently, three retired Australian judges are serving in Hong Kong's Court of Final Appeal in a private capacity.

"The Australian Government remains deeply concerned by the continuing erosion of Hong Kong's rights, freedoms and autonomy, including through the broad application of the National Security Law," says a spokesperson from the Department of Foreign Affairs and Trade.

"Australian judges in Hong Kong serve in a private capacity, and any decision about their continued role in Hong Kong's courts is a matter for them to make as individuals."

Finn Lau, a Hong Kong political activist exiled in London and charged under the national security law, said Australian businesses need to be alert to how Mr Lai's trial is processed.

"[Mr Lai's case] implies that the protection of private property rights in Hong Kong is gone," he said.

"[It also] indicates the press freedom in Hong Kong is under severe attack."

For Hongkongers, Mr Lai's trial also reminds them of the forced disappearance of Apple Daily, whose combination of community journalism, celebrity gossip and serious columns nurtured a unique media culture.

The newspaper also founded a charity fund in 2019 and had supported 225 chronically ill patients with low incomes until it was terminated when the newspaper shut down in 2021.

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