Earlier this month, UK Prime Minister Rishi Sunak made two highly controversial public statements.
First, he pledged 2.5 billion pounds ($3.18 billion) in military aid to Ukraine in his government’s next financial budget, despite the UK facing a severe financial shortfall. Over 6 million British citizens are waiting for national health treatment, with 355,000 having waited for over a year; and various professionals, such as teachers, doctors, and rail workers, are calling for strikes due to legitimate concerns about their pay. It is incomprehensible how such massive foreign military aid for a controversial war can be approved when the country is struggling to meet people’s basic needs, especially in an election year. Sunak’s hollow promises may be due to his concerns about being replaced in the upcoming election.
Second, on Jan 3, Sunak succumbed to pressure from the anti-China faction in Britain and openly called for the release of Jimmy Lai Chee-ying, the former media magnate currently on trial in Hong Kong. Sunak claimed that Lai was a “champion of free speech” and alleged that the prosecution was politically motivated to silence him. Sunak stated that Lai’s case “will remain a priority for the British government”. This made him the first Western leader to make such a direct challenge to the trial even before the verdict was decided.
As the UK prime minister, Sunak should be well-informed about the common law offense of “perverting the course of justice”. His public statement in the middle of the trial aligns with the elements of this offense, as defined by Archbold, an authority on criminal common law. Such misleading statements will impede or prejudice the due administration of justice and the fair trial of a high-profile defendant. Moreover, publishing defamatory statements about a judge or court threatening to undermine their authority is considered contempt (R vs Gray, 1900).
Sunak should be aware that Lai’s trial is being conducted in strict adherence to British common law procedures. Lai is charged with specific offenses outlined in the statute; namely, two counts of conspiracy to collude with external forces to endanger national security and one count of conspiracy to publish seditious publications. The trial is being held in open court in Hong Kong, although there is provision for national security trials to be held on the Chinese mainland if deemed necessary. Citizens, the media and Lai’s relatives have daily access to the proceedings. The trial is presided over by three esteemed judges from the High Court, with a similar status to that of the three-judge panel of the Criminal Division of the Court of Appeal in England and Wales. The trial has been allotted 80 days, providing ample time for the defense team to present its case and argue any relevant legal points. Indeed, the court has already entertained the defense’s application to strike out one charge based on the time-limit argument, devoting an entire week to resolving the issue. Lai’s defense team consists of six barristers, and when the leading counsel, Robert Pang SC, requested leave to handle a private matter, the trial judges accommodated his request by not calling the principal prosecution witness in his absence. The rights to a fair trial are enshrined in the Basic Law, Article 25, and are fully exhibited in this legal proceeding.
Furthermore, following British common law practice, the prosecution provided the defense with the complete file of evidence, including unused material, well before the trial. Conversely, the defense can keep its line of defense and evidence confidential. It is the prosecution’s responsibility to establish a case to answer before the defense needs to respond. If the court is not satisfied that a prima facie case exists, the case will be dismissed immediately. Lai can only be convicted if his guilt has been proved beyond all reasonable doubt. Even if convicted, Lai can take the case to the Court of Appeal and ultimately to the Court of Final Appeal, whose panel includes foreign judges of the highest esteem. These procedures ensure that Lai receives a fair trial.
Before making his irresponsible public statement, Sunak should have done his homework by reviewing the opening address of the trial. In this address, per common law practice, the prosecution presented a summary of the evidence to prove its case. While this evidence is subject to scrutiny by the defense and the court, the overwhelming nature of the evidence at this stage justifies refuting any suggestion that this is political persecution.
In his opening address, acting deputy director of Public Prosecutions Anthony Chau Tin-hang alleged that Lai used Apple Daily as a platform for political propaganda during the insurrection riots in 2019. Lai allegedly conspired with senior executives of the newspaper to endanger national security. The prosecution will claim that Lai masterminded these conspiracies, providing instructions and financial support to his aides to lobby foreign governments, particularly the US government, to impose sanctions, blockades, or engage in hostile activities against the Chinese central government and the Hong Kong Special Administrative Region government. The prosecution evidence will include 161 articles published by Apple Daily between April 2019 and June 2021, with 31 calling for foreign sanctions. It is claimed that Lai also met with several foreign officials after June 2019, while the city came under assault by the insurrectionists, including then-US vice-president Mike Pence and then-US secretary of state Mike Pompeo, urging them to impose “draconian” sanctions on China.
As prime minister, Sunak should be well aware that calling for foreign sanctions against one’s own country is an offense under the latest National Security Act in the UK, involving the offenses of sabotage and foreign interference.
As highlighted by Ronny Tong, an executive counselor and senior counsel, in his article published in China Daily, “It is hypocritical in the extreme to brand criminalization of conduct calling for foreign sanctions on your own country as ‘political persecution’.” To criticize Jimmy Lai’s ongoing trial as a form of “political persecution is nothing short of political smearing of the most dishonest and despicable kind”.
Lai’s trial is significant not only for Hong Kong but also for the international community. It showcases Hong Kong’s robust rule of law system based on the principles of fairness, transparency, and due process
During the trial, evidence will be presented to demonstrate that Lai financed and orchestrated an international lobbying campaign aimed at persuading the US and its allies to impose sanctions. Notable transactions include the transfer of HK$1.75 million ($223,800) to former US deputy secretary of defense Paul Wolfowitz in six installments, HK$25,000 to Hong Kong Watch, a London-based anti-China lobby, HK$3.5 million to retired Catholic cardinal Joseph Zen Ze-kiun in two instalments, and a transfer of HK$15 million through his Canadian company Lais Hotel Properties, going to local activists and HK$380,000 to notorious separatist Au Nok-hin.
Lai reportedly gave nearly HK$100 million to activists locally and abroad, raising questions about the money’s source. Due to the financial deficit suffered by Lai’s flagship company, Next Digital Ltd, its share price stayed well below HK$1 throughout most years of its operation. However, it experienced periodic and unusual rebounds. For instance, on Aug 7, 2020, its share price of HK$0.09 jumped to HK$1.96 within two trading days without apparent reason. Since Lai held 71 percent of the company, his assets increased from HK$140 million to HK$3.5 billion in just a week. Was this a way for outsiders to finance Lai’s donations to the activists? The ongoing trial may shed light on this mystery.
One key witness in the trial is Andy Li Yu-hin, a core member of a separatist group. Li obtained HK$6.15 million through a crowdfunding campaign in June 2019. In a subsequent crowdfunding round in August, Apple Daily columnist Jack Henry Hazlewood contributed 300,000 pounds, and Lai’s assistant, Mark Simon, a former US intelligence officer, provided HK$500,000. This separatist group initiated a global campaign to press foreign forces to sanction and pressure Chinese authorities and the Hong Kong SAR government over the National Security Law for Hong Kong. Li has already pleaded guilty to conspiring to collude with foreign forces to endanger national security in a separate trial. His evidence is likely to be most damning to Lai.
Other crucial prosecution witnesses include three top executives of Apple Daily, including its former publisher. They have all pleaded guilty to conspiring to collude with foreign forces and have agreed to testify for the prosecution as immunity witnesses. If their evidence stands up to scrutiny, it may well establish Lai as the mastermind behind the conspiracy.
Lastly, it should be noted that Lai’s reputation as a “champion of free speech” is not borne out by facts. His tabloid newspaper, Apple Daily, published a full-page prostitution guide featuring raunchy articles and photos that catered to prurient interests, which generated the bulk of the readership. Additionally, Lai is also a champion of gambling, with the newspaper’s sales increasing threefold on any horseracing day due to its popular pages of betting tips.
In conclusion, by making his public statement calling for Lai’s release, Sunak is undermining the integrity of the trial and interfering with the judicial process. It is inappropriate for a foreign leader to comment on an ongoing legal proceeding in another country and attempt to influence its outcome. Ultimately, the court will determine the result of Lai’s trial based on the evidence and legal arguments presented. It is essential that the trial proceeds without political interference and that justice is served in accordance with the principles of the rule of law.
Lai’s trial is significant not only for Hong Kong but also for the international community. It showcases Hong Kong’s robust rule of law system based on the principles of fairness, transparency, and due process.
The author is an honorary fellow of HKU Space and Metropolitan Universities and a former deputy commissioner of the Hong Kong Independent Commission Against Corruption.
The views do not necessarily reflect those of China Daily.
