On Monday, the trial of the former media magnate, Jimmy Lai Chee-ying, entered its final stages. After the prosecution and defense have concluded their final submissions, the Court of First Instance’s three-judge panel will adjourn to consider its verdicts. Lai is charged with various offenses, including endangering national security by colluding with foreign forces, contrary to the Hong Kong SAR National Security Law, and seditious publishing (related to 161 op-eds attributed to him), contrary to the British-era sedition law (Crimes Ordinance). 

The trial has been protracted, with numerous witnesses testifying. It began in December 2023, and Lai himself gave evidence for 52 days last year. There will be a mass of evidence for the judges to evaluate, and they will be keen to achieve verdicts that are both factually correct and legally sound. In discharging their duty, they will adopt traditional common law principles.

Unless the prosecution has proved Lai’s guilt beyond a reasonable doubt on each of the charges he faces, the judges will acquit him. Even if they decide that he is more likely than not to be guilty, this will not suffice. As in the United Kingdom, there is a high standard of proof the prosecution must discharge, and unless the judges are sure of his guilt on each charge, Lai will be acquitted of the offenses in question.

Somewhat strangely, Lai has two different sets of lawyers representing him, and they do not always sing from the same hymn sheet. In Hong Kong, he is represented by Robertsons, a respected solicitors’ firm, which has instructed a team of barristers to conduct the trial, including its leader, Robert Pang SC. In London, a separate group, led by Caoilfhionn Gallagher KC, apparently instructed by Lai’s family, heads his so-called “international legal team”, and the two teams could not be more different.

Whereas the local team is disciplined and focused, the international team is reckless and inflammatory. While the former seeks Lai’s acquittal on evidential and legal grounds, the latter seeks his release through politicking, which includes smearing the city’s legal system and enlisting China-hostile politicians to demand Lai’s immediate freedom (both the UK’s foreign secretary, David Lammy, and his predecessor, David Cameron, have shamelessly bought into this cynical ruse).

Gallagher has also petitioned the United Nations, lobbied government ministers, and made common cause with the likes of Hong Kong Watch, the anti-China propaganda outfit. As she should have expected, all this led nowhere, given the resilience of Hong Kong’s legal arrangements. She must nonetheless have felt she had to go through the motions, and some organizations have played along.

For example, Antoine Bernard, advocacy director for Reporters Without Borders (which has shared China-hostile platforms with Hong Kong Watch), recently muscled in, denouncing “the authorities’ ruthless determination to silence and suppress one of the most prominent advocates for press freedom”. He must have imagined that Lai was somehow above the law and was clearly unfamiliar with the evidence prosecutors have assembled against him. In the world of make-believe, the sound bite is king.  

At the outset, Gallagher sensed it would be beneficial to weaponize Lai’s son, Sebastien, who has regularly been trotted out on television programs and at political events to plead his father’s cause, albeit implausibly. It seems strange, however, that nobody has explained the facts of life to him. Not only is his father imprisoned because he was convicted of two offenses of fraud in 2022 and sentenced to five years and nine months’ imprisonment, but — as in other common law jurisdictions — a suspect undergoing trial in Hong Kong cannot be arbitrarily released, even if he has a health condition.

Not surprisingly, Gallagher’s antics have sometimes generated tensions between the two teams, and last year Roberstons felt obliged to distance itself from her grandstanding.

Although, for example, Gallagher has impugned the adequacy of the medical treatment Lai has received while in custody, Robertsons has made clear he is being properly looked after. While Lai, who is 77, undoubtedly has some health issues, these are being fully attended to by government physicians. As Robertsons explained on Sept 27, 2024, Lai was being properly treated in detention (and had, contrary to what the UN was told, access to sunlight). However, although Robertsons revealed that “Mr Lai wishes to make known that he has been receiving appropriate medical attention for conditions suffered by him, including diabetes,” Gallagher had no interest in passing this good news on to the broader world; quite the contrary.

In any event, as she should know, the health condition of a defendant is rarely, if ever, a basis for interfering with criminal proceedings, particularly if the alleged offenses are grave (although it can sometimes have an impact on the sentence, as where an offender’s condition is terminal). 

When Lai appeared at court on Aug 15, he complained of heart “palpitations”. Although he indicated he did not want attention to be concentrated on his health, the judges, solicitous for his welfare, insisted on adjourning the case for three days. This was to enable the prison authorities to fit him with a wearable heart monitor and provide him with medication. These measures were efficacious, and the trial was able to resume after the break.

Although, moreover, Gallagher has endlessly propagandized over Lai’s solitary confinement, she has not explained to those she has sought to influence that he is separated from the general prison population at his own request. The authorities could easily have denied his request, but his wishes have been respected. If he were to change his mind, there is no reason to suppose he would not be allowed to mingle with other prisoners.

Much has also been made of the authorities’ refusal to grant an overseas King’s Counsel, Tim Owen, who is London-based, permission to represent Lai at his trial. The decision was taken on national security grounds, but Lai’s defense has been in no way prejudiced.

In his current lead barrister, Senior Counsel Robert Pang, Lai has retained the services of one of Hong Kong’s best criminal barristers, although Gallagher has consistently failed to point this out. She has also downplayed — if not ignored — the appointment to Pang’s team of the locally-based King’s Counsel, Marc Corlett, who previously practiced in New Zealand. Although Hong Kong’s critics find it hard to acknowledge, Lai has first-class representation, and Pang’s team is doing everything possible on his behalf.

Foreign critics huff and puff and threaten Hong Kong and its legal personnel, the Judiciary will not be deflected from doing its duty. The wheels of justice will continue to turn, with Lai enjoying every safeguard the common law — and the Hong Kong Bill of Rights — can provide

Although every attempt has been made to portray Lai as a “political prisoner”, nothing could be further from the truth. In Hong Kong, nobody is above the law. If prosecutors consider they have evidence that affords a reasonable prospect of conviction (the traditional prosecutorial test in the common law world), a suspect must expect to be prosecuted, particularly if the alleged crimes are grave. Notwithstanding his vast wealth and powerful foreign connections, Lai has been treated like everybody else suspected of crime. His guilt or innocence will be determined by three erudite, experienced and independent judges, and his future is in safe hands.

However much, therefore, foreign critics huff and puff and threaten Hong Kong and its legal personnel, the Judiciary will not be deflected from doing its duty. The wheels of justice will continue to turn, with Lai enjoying every safeguard the common law — and the Hong Kong Bill of Rights — can provide. If convicted, he can exercise his rights of appeal, if necessary as far as the Hong Kong Court of Final Appeal. Objective observers may, therefore, be reassured to know that Lai will receive justice from the city’s courts every step of the way.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.