US law allowing sanctions on China, Hong Kong officials ‘highly subjective,’ legal expert tells Jimmy Lai’s trial
Hong Kong Free Press
A US law which authorises sanctions against mainland Chinese and Hong Kong officials for perceived human rights violations could be “highly subjective,” the national security trial of Jimmy Lai has heard.
The prosecution on Friday presented reports written by Wang Guiguo, the chair professor of Chinese and comparative law at the City University of Hong Kong. Wang was invited to give his views on US laws relating to Hong Kong that arose in the aftermath of the anti-extradition protests in 2019.
During the unrest that year, activists had called on the US to enact legislation that would punish Hong Kong and China officials for their handling of the pro-democracy movement.
Government prosecutor Crystal Chan read out Wang’s reports, which detailed a timeline of the US’s response to the 2019 protests and the ensuing developments in the city. The timeline began with then-US President Donald Trump’s signing of the Hong Kong Human Rights and Democracy Act in November 2019.
The act allows the US to impose sanctions on mainland Chinese and Hong Kong officials deemed to be “undermining fundamental freedoms and autonomy.”
“The conditions for imposing sanctions are that the foreign person is responsible for… extrajudicial rendition, arbitrary detention, or torture of any person in Hong Kong; or… other gross violations of internationally recognised human rights,” Wang wrote, citing the law’s text.
“The terms such as “responsible,” “arbitrary,” “gross,” etc are subject to highly subjective judgement,” the scholar continued. “As they are to be interpreted in conjunction with other US laws, misinterpretation or even abuse cannot be avoided.”
The Hong Kong Human Rights and Democracy Act also requires the US to annually review whether political changes in Hong Kong still warrant its favourable trade relations status.
Friday marked the 74th day of media mogul Lai’s high-profile national security trial. Lai, who founded pro-democracy newspaper Apple Daily, faces two counts of conspiring to collude with foreign forces related to international lobbying efforts calling for sanctions on the city, as well as one count of conspiring to publish “seditious” materials.
39 officials sanctioned
The Hong Kong Human Rights and Democracy Act was the first in a series of US responses to the city’s protests in 2019, the court heard.
After Beijing imposed its national security law in Hong Kong in June 2020, the US made more policy moves, Wang’s report noted. They included passing the Hong Kong Autonomy Act, which allows more sanctions on individuals seen to have violated human rights in Hong Kong, and terminating fugitive transfer agreements.
Since the security law was enacted, the US has sanctioned 39 mainland Chinese and Hong Kong officials under the Hong Kong Autonomy Act. Among them are ex-chief executive Carrie Lam and former police chief Chris Tang, now the city’s security chief, Wang wrote.
US politicians had also brought to the legislature two bills that have not yet been passed – the Hong Kong Safe Harbour Act and the Hong Kong People’s Freedom and Choice Act, Wang wrote.
The two bills propose asylum protection for Hong Kong residents in the US who were involved in political activities back home.
The scholar cited word-for-word some sections of the Hong Kong Human Rights and Democracy Act, the Hong Kong Autonomy Act and the Hong Kong People’s Freedom and Choice Act.
On the Hong Kong Human Rights and Democracy Act, Wang said sanctions imposed under it would have a direct impact on financial institutions in Hong Kong and mainland China.
This was because ‘in this globalised world, financial institutions need to operate globally, and the US dollar is still the primary denominated currency for international transactions,” Wang continued.
Regarding the Hong Kong Autonomy Act, Wang said sanctions were imposed in respect of peoples’ official positions rather than what they had done.
The scholar cited a December 2020 statement from the US Bureau of East Asian and Pacific Affairs naming five people under the Hong Kong Autonomy Act. The five were deputy directors at the Hong Kong Liaison Office, Beijing’s organ in the city.
Wang suggested they were identified solely because of their titles. “Nothing was said about any activities of these individuals. This undifferentiated identification could easily make those involved in the government [the] subject of sanctions,” he wrote.
Former Apple Daily executive testifies
The prosecution completed its re-examination of Royston Chow, the former chief financial officer of Next Digital, on Friday morning.
Chow was arrested under the national security law in June 2021 alongside Lai and other Apple Daily executives, but was granted immunity in exchange for testifying against the tycoon in the present trial and in a separate fraud case.
Government prosecutor Anthony Chau asked him questions about a channel on Slack, a workplace messaging app that Apple Daily used. The channel was called “Apple Daily Hong Kong print form advertisements.”
Chau questioned him on whether he knew who had created the channel. Chow replied that he did not remember.
When asked if he had joined the channel at the time it was created in December 2019, the witness said he “believed so.”
The court earlier heard that the channel was used for raising matters that would be discussed at the “lunchbox meetings” attended by management.
Lai’s trial – which began in mid-December – was initially slated to take 80 days, meaning it would wrap up this month. But the mogul’s barrister Robert Pang Pang told the court on Monday that he estimated the trial might be “going into early June,” citing plans to play 35 hours of an interview show hosted by the tycoon on Apple Daily as well as to summon six or seven police officers to testify.
On Friday, the court heard that the defence would be summoning five police officers.
The defence is also applying to call the former CEO of Next Digital, Cheung Kim-hung, to the stand again. Cheung, who was charged alongside Lai on one count of conspiring to collude with foreign forces, pleaded guilty to the offence and became a witness for the prosecution. He testified against Lai in January.
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