Sedition charge against Hong Kong media mogul Jimmy Lai ‘out of time,’ defence says as security trial starts
Hong Kong Free Press
HKFP’s on-the-ground reporting is also appearing in The Guardian.
The sedition charge laid against detained Hong Kong media tycoon Jimmy Lai was “out of time” as it fell outside a six-month statute of limitations, the defence has argued as the high-profile national security trial finally got underway.
Lai, the founder of pro-democracy newspaper Apple Daily, appeared before a panel of three handpicked national security judges on Monday morning. The 76-year-old wore a grey suit jacket and waved to supporters from the dock, where he sat sandwiched between corrections officers.
The High Court case, which is expected to last 80 days, is being held at the West Kowloon Law Courts Building, a bigger facility to accommodate huge interest in the case. Large numbers of police officers were stationed inside and outside the court building, part of enhanced security arrangements that also saw a bomb disposal van parked across the street.
The trial started with judge Esther Toh disputing a news report that stated the court had rejected an application from the defence to allow overseas witnesses to give evidence remotely. She appeared to be referring to an exclusive story published by local outlet Sing Tao last Friday but which could no longer be found online.
Toh said “no application whatsoever” had been received within the valid period, and neither had there been any applications to extend that period. The defence confirmed in court that it had not filed an application.
Lai – who has been detained since December 2020 – stands accused of two counts of conspiring to collude with foreign forces under the Beijing-imposed national security law. He also faces one count under the colonial-era sedition law, which has been increasingly used in the wake of the national security legislation.
If convicted, Lai faces up to life imprisonment. He is yet to formally enter his plea.
Robert Pang, representing Lai, said his client was “perfectly fine” to follow the proceedings in English but was slightly hard of hearing, and was thus wearing headphones. Toh said that anytime Lai could not hear, he could let the court know by raising his hand.
The barrister spent much of the day discussing the sedition charge and the statue of limitations under the colonial-era law, which is set at six months. Lai stands accused of conspiring to print, publish, sell or distribute “seditious publications” between April 2019 and June 24, 2021 – when Apple Daily’s final edition was published following a police raid and the arrest of top executives.
But Lai was only charged on December 28, 2021, more than six months later. Hong Kong’s Crimes Ordinance states proceedings cannot be instituted when “any time limit applicable to the institution of any such proceedings has expired.”
“It is out of the time bar. It is out of time. Therefore there is no jurisdiction of the court,” Pang said, adding that the ordinance provided “clear words which the court must give effect to.”
Suggesting otherwise would be to “emasculate” the section of the ordinance such that there would be “simply no purpose” for it,” he added.
Pang raised two time frames the court could consider for the six-month window. The first was from April 1, 2019 – when the prosecution asserts the first “seditious” article was published – until October 1 that year. The second began on June 24, 2021, and lasted until that December 24.
The charge date, however, falls outside both of the windows.
“We recommend that ‘conspiracy to commit’ offences should be subject to the [same] time [limit]… as the offences themselves,” Pang added.
Judge Alex Lee said there was “no disagreement that [the sedition charge] is subject to a time limitation of six months.”
“The dispute is… when time started to run,” Lee said.
Pang completed his arguments relating to the statute of limitations matter, and the first day of the trial concluded about an hour earlier than scheduled.
The prosecution will present its case on the issue on Tuesday.
‘A close interest’ in the trial
Monday’s trial saw reporters and members of the public line up for tickets in the early hours of the morning. Anticipating the interest, the Judiciary made available almost 400 public gallery seats, including four rooms as court extensions that broadcast the proceedings live from the main courtroom.
Police cordoned off an area for reporters to take photos of people entering and leaving the court, among them foreign consulate representatives from the UK, Australia and Canada.
Matthias Kaufmann, the deputy head of office at the European Union Office to Hong Kong and Macao, watched the trial in a courtroom extension.
He told HKFP that the EU and its member states were observing national security law trials involving activists in Hong Kong to signal “a close interest” to the matter.
“Openness and transparency were key features of the Hong Kong judiciary system, allowing for interested parties to observe the trial,” Kaufmann said.
He added that the EU observed trials around the world as a signal of its commitment to human rights and the rule of law.
Family members of Lai, including his wife and children, were also seen at the trial on Monday.
Lai, who turned 76 in a maximum security prison earlier this month, has been in custody since December 2020. He is currently serving a five year and nine month sentence over a lease violation at Apple Daily’s headquarters.
The trial against Lai was originally slated to begin last December but was postponed following official attempts to prevent him hiring a top British lawyer, Timothy Owen. Lai also holds British citizenship.
Owen was effectively barred from representing Lai after Beijing, at Hong Kong’s invitation, issued the first interpretation of the national security law, confirming that the chief executive and a national security committee had the authority to decide whether overseas lawyers could take part in national security trials.
When Lai appeared in court on Monday, he had been behind bars for 1,081 days.
His trial will be heard by three judges specially designated to hear national security cases but without a jury – a departure from the city’s common law traditions but similar to the arrangements in other national security trials, including one involving 47 democrats.
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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