Beijing-backed newspaper seeks to bar jury in libel suit brought by Hong Kong’s Jimmy Lai
Hong Kong Free Press
A Beijing-backed newspaper being sued by Hong Kong’s jailed pro-democracy tycoon Jimmy Lai is resisting his calls for a jury to hear the libel case.
Lai, who is separately on trial for conspiring to collude with foreign forces and sedition under a Beijing-imposed national security law, brought the libel case almost four years ago against Ta Kung Pao over articles claiming that he planned to illegally abscond from Hong Kong.
The former tycoon is asking the High Court to order the paper to publish an apology and pay damages, and to bar it from publishing similar content.
Lai, 76, who founded now-defunct pro-democracy newspaper Apple Daily, has been detained since December 2020. He is currently serving a five-year and nine-month sentence for fraud over violating the lease agreement for Apple Daily’s headquarters, and faces possible life imprisonment if convicted of collusion.
Lai’s counsel Kenneth Lam argued before judge Queeny Au-Yeung on Thursday that it should be up to a jury to deliver a simple yes-no verdict on whether the articles contained “malice,” while other factual questions could be handled by a trial judge.
The judge would then decide on what to do with the jury’s answer, Lam said.
Lai’s counsel referred to articles published by Ta Kung Pao on June 25, 2020, which alleged it was “well apparent” that Lai intended to flee Hong Kong, and that he would breach bail conditions imposed by the court.
Its headlines that day included “Leaders who sowed chaos in Hong Kong plot getaway, escape route exposed,” and “Lai’s intention to abscond and evade criminal responsibility well apparent.”
Lam asked the court to bear in mind the “statutory presumption” in favour of a jury trial. Hong Kong law stipulates that the facts in libel cases shall be heard by a jury unless the High Court decides that they are excessively complicated or technical.
Public interest
Ta Kung Pao’s defence counsel on Thursday submitted that having a trial by judge alone would allow the judge to read the articles in advance, while counsel could clarify any questions. Jurors, who are not allowed to speak to lawyers during a trial, would instead have to “scratch their heads,” he added.
The defence also said the question of whether people were leaving Hong Kong to avoid trial was newsworthy and of public interest, and “goes to illustrate the state of mind” of the paper.
That formed the basis of Ta Kung Pao’s “Reynolds” defence, which was designed to protect a journalist who, in the public interest, published an allegation that turned out to be untrue.
The defence argued that a jury was unsuitable in cases involving a Reynolds plea, citing a 2016 libel suit involving local paper Ming Pao that was not tried by a jury. The plaintiff, meanwhile, cited a 2022 slander case involving two Hong Kong lawmakers that saw a jury deliver a verdict on the presence of malice.
A trial by a judge alone would allow appeals from either side, the defence also argued. But Lam said there was “importance” in finality, citing an Australian judge’s contention that it was not necessarily a bad thing that jury decisions could not be reviewed.
Au-Yeung said the court would hand down its decision on whether to allow a jury trial by the end of October.
In a departure from the city’ common law tradition, national security cases are not tried by juries, and are instead presided over by designated judges. Lai’s libel action does not fall into this category.
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