No evidence Hong Kong’s Jimmy Lai called for sanctions after security law enacted, lawyers argue
Hong Kong Free Press
Prosecutors in pro-democracy media tycoon Jimmy Lai’s national security trial did not present evidence that he intended to call for sanctions after the national security law was enacted in June 2020, the mogul’s lawyers have argued.
Lai’s lawyer, Senior Counsel Robert Pang, on Wednesday presented a “no case to answer” argument, in which the defence seeks the defendant’s acquittal by arguing that the prosecution did not present enough evidence to build a case.
Lai, 76, is on trial for two counts of taking part in a “conspiracy to collude with foreign forces” under the Beijing-imposed security legislation, and also for conspiring to publish “seditious” materials under a colonial-era law. He faces up to life in prison if convicted.
His newspaper Apple Daily, which was forced to close in June 2021 after senior staff were arrested, faces the same charges.
No case to answer
Pang argued on Wednesday that something agreed before a law came into effect to make it unlawful would not automatically become illegal after the new legislation were introduced. Instead, the enactment of the new law would invalidate the earlier agreement by bringing it into an entirely new legal landscape.
With regards to Lai’s case, Pang said: “There may be some evidence of agreement to publish certain articles… to work with some organisations, but there is no evidence after the NSL was promulgated.”
Lai’s plan with his co-defendants did not amount to a conspiracy, Pang said, arguing that it could only be considered as such if there was an element of unlawfulness. “Otherwise, it’s simply an agreement.”
The question, judge Alex Lee said, was whether Lai still intended to invite foreign sanctions even after the passage of the national security law.
Pang said the prosecution had not presented evidence of acts indicating an intention to continue carrying out the initial agreement, or suggesting a new agreement, after the security law came into effect.
Lead prosecutor Anthony Chau maintained that Lai’s intention to call for sanctions continued after the passing of the security law, citing the media mogul’s “live chats” that went on even after senior Apple Daily staff relayed concerns about potentially breaching the law.
Chau referenced former publisher Cheung Kim-hung’s concerns over inviting Jack Keane, the former vice chief of staff of the US Army, onto Lai’s show.
Chau also compared Lai’s case to the conviction of 14 pro-democracy figures for a subversion conspiracy this May.
Chau said defendants were indicted over a conspiracy to commit subversion, which was a scheme formed before the law took effect. The common purpose remained unchanged, and continued after the law was promulgated, he argued.
Nothing showed that such an agreement would be automatically dissolved, Chau said. However, judge Lee – who also presided over the subversion trial – said there had in that case been proof of participation in the conspiracy, as everyone who was convicted was either an organiser or a participant in the primary election at the centre of the case.
Press freedom
Addressing the prosecution’s allegation that Lai’s pro-democracy newspaper Apple Daily had been used as a platform, Pang said press freedom was guaranteed under Hong Kong’s mini-constitution, the Basic Law, as well as the city’s rights ordinance.
“These are exactly the sorts of things that newspapers do. The witnesses all agreed that a newspaper is the fourth estate that keeps in check the powers of the government and informs the public,” Pang said.
“Of course, being a newspaper is not a trump card,” he said. “But it is something thrown very heavily onto the scales.”
Pang told the court that Lai consulted lawyers on how not to breach the security legislation, which he said amounted to “positive evidence” that the agreement was in compliance with the law.
The consultations pointed towards a “need to step back” from the agreement, and a realisation that they could not go on with what was originally agreed, he said.
Pang also drew attention to the prosecution’s submission that Lai and his co-defendants aimed to lobby foreign governments to impose sanctions on the Hong Kong government.
That was a “bald statement with no evidential backing,” Pang said, adding that a mention of sanctions over WhatsApp did not amount to an actual call for sanctions.
But judge Esther Toh said that Lai’s discussions about the supposedly beneficial effect of sanctions against the government could “equally” be regarded as a call for sanctions.
“They were really, in the nature of an armchair pundit, talking about world affairs,” Pang replied. “You might find this sort of discussion in a cha chaan teng, but that comes nowhere near… an agreement to essentially break the law.”
The hearing will continue on Thursday.
When Lai’s trial began on December 18, 2023, he had already spent more than 1,000 days in custody after his bail was revoked in December 2020. Three judges – handpicked by Hong Kong’s chief executive to hear national security cases – are presiding over Lai’s trial in the place of a jury, marking a departure from the city’s common law traditions.
Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers and led to hundreds of arrests amid new legal precedents, while dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs.
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