Hong Kong judge refuses Jimmy Lai’s bid for jury trial in libel suit against pro-Beijing paper
Hong Kong Free Press
A Hong Kong judge has rejected Jimmy Lai’s bid for a jury trial in his libel case against a pro-Beijing newspaper, and ordered the jailed media mogul to pay HK$300,000 in legal costs arising from his failed application.
The libel claims brought by the founder of Apple Daily against Chinese state-backed media Ta Kung Pao involved “prolonged examination of documents” and was not suitable for jury trial, Justice Queeny Au-Yeung ruled on Thursday.
Lai, whose high-profile national security trial will resume next month, launched legal action against Ta Kung Pao in November 2020, after the newspaper published an article in June 2020 that was allegedly defamatory.
At a previous hearing, Lai’s lawyers argued that the article, headlined “Leaders who create chaos in Hong Kong plotting escape, escape route exposed, charge one million dollars,” contained words that suggested Lai was planning to abscond from the city via illegal means and breach the bail terms imposed by the court.
Lai at the time was charged in an unlawful assembly case linked to the 2019 extradition bill protests. He was later arrested in August 2020 on suspicion of colluding with foreign forces. He was formally charged under the national security law in December that year and was briefly released on HK$10 million cash bail. But the city’s top court overturned that decision and he has been detained since December 31, 2020.
The tycoon is currently serving a jail term of five years and nine months for separate fraud charges. He is set to take the witness stand in late November in the national security case involving the defunct pro-democracy newspaper he founded, and could face life imprisonment if convicted.
Lai’s legal team previously said Ta Kung Pao had conducted a “campaign of intense hostility” against Lai by publishing and republishing articles maliciously. The pro-Beijing newspaper defended its publication by saying that the words in question were “fair/honest comments” on a matter of public interest.
The newspaper sought to rely on the “Reynolds” defence, which was designed to protect a journalist who, in the public interest, published an allegation that turned out to be untrue, former justice minister and Senior Counsel Rimsky Yuen told the court in a previous hearing on behalf of Ta Kung Pao.
In rejecting Lai’s request for a jury trial, Judge Au-Yeung said on Thursday the right to a jury trial was “not absolute” and was at the court’s discretion. Jury trials may add to the complexity of a case, impede settlement and add significantly to costs and time, the judge said citing a UK case.
If a jury were to be selected for Lai’s case, they would need to examine documents in the evidence, as well as papers to be introduced during cross-examination. At present, more than 1,200 pages of documents had been disclosed by the plaintiff and the defendant. But more documents are expected to be produced during the trial, including news articles, government press releases and annual returns.
“[T]his case clearly involves prolonged examination of documents, which is not suitable for a jury,” Au-Yeung wrote in her written judgement, adding that the plaintiff’s estimation of five days for trial was “optimistic.”
The judge said that instead of having Lai’s lawyers explain legal concepts to the jury, a judge may read the documents beforehand and draw inferences based on the counsel’s submission. Time for speeches may also be reduced if the case was heard only by a judge, who could read written submissions beforehand, she said.
The “Reynolds” defence on which Ta Kung Pao seeks to rely would also add complexity to the case, which rendered the option of a jury trial unsuitable because the jurors would have to handle mixed law and facts.
“I fail to see how it can be said that trial by a jury will be shorter than by a judge in this case,” Au-Yeung wrote.
Legal costs
The judge ordered Lai to cover legal fees which Ta Kung Pao spent on the summons hearing, which amounted to more than HK$900,000. Au-Yeung said such proceedings did not warrant the engagement of a senior counsel, and the costs claimed by the newspaper were “staggering and plainly wide” for a procedural application.
The court eventually ordered Lai to pay HK$300,000 to cover the cost of the junior counsel, Thomas Wong.
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