Background

As a 3-judge panel of the Court of First Instance ponders its verdicts in the national security trial of the former media magnate, Jimmy Lai Chee-ying, his foreign supporters have moved into top gear. Their activities are orchestrated by five London-based barristers, led by King’s Counsel Caoilfhionn Gallagher, calling themselves Lai’s “international legal team”. They work on the assumption that if they make enough noise and throw enough dirt, their client will benefit.

However, as anybody familiar with the resilience of Hong Kong’s legal system knows, they could not be more mistaken. Theirs is an exercise in futility, and whoever foots their bills will have had a nil return. They have learned the hard way that even the crudest propaganda is incapable of affecting one of the most professional criminal justice systems in the Asia-Pacific region.

Lai is charged with two offenses of colluding with foreign forces to endanger national security and one of conspiring to publish seditious materials.

Although judgment day is fast approaching, the myths are still being churned out, with none too absurd for deployment.

However, the public deserves to know the truth, and the record must be set straight. Whereas some myths are manifestly false, others require closer investigation. Once scrutinized, they all wilt in the cold light of day.

The myths:

A. Lai is not receiving a fair trial

Earlier this year, Jessica Ludwig, a global policy fellow at the George W Bush Institute, became the latest to claim there was “little reason to believe the Hong Kong court will issue a fair ruling on Lai's case”.

However, this myth served only to highlight her ignorance of Hong Kong’s criminal justice system. As in other common law jurisdictions, Lai can only be convicted if his guilt has been proved beyond a reasonable doubt. The trial judges have taken an oath to “safeguard the law and administer justice without fear or favor, self-interest or deceit”, and there is nothing in their distinguished pedigrees to suggest they will not adjudicate fairly.

If Lai is convicted, it will not be because his trial was in any way unfair. It will be because the evidence the prosecution adduced was overwhelming and his own testimony was disbelieved.

B. Lai’s prosecution is politically motivated

This myth has been eagerly embraced by naive politicians. For example, in November, 2023, the UK’s then-foreign secretary, David Cameron, called for Lai’s release because of what he called a “politically motivated prosecution”.

As a non-lawyer, Cameron was apparently unaware that prosecutors in Hong Kong eschew politics, or that, under the Basic Law, they enjoy constitutional independence (Art. 63). Moreover, as in the UK, prosecutions can only proceed if the evidence provides a reasonable prospect of conviction. If a trial lacks the necessary evidence, it will inevitably collapse, and no prosecutor in his right mind would want to see that.

After Cameron made his allegation, it was pointed out to his leader, the then-prime minister, Rishi Sunak, on Jan 24, 2024, that if Cameron had any evidence that the trial was politically motivated, he should pass it on to Robertsons, Lai’s solicitors. It would, he was told, greatly assist Lai’s defense team at trial and provide a basis for halting the case (as an abuse of process).

However, Cameron came up with nothing, and the point was never even raised at trial. There was clearly no such evidence. But although Cameron was unable to substantiate his slur, Sunak shamefully let him get away with it.

C. Lai is being persecuted because he believes in media freedom

This myth is widely peddled, but easily rebutted. For example, in early 2024, Rishi Sunak called Lai “a champion of free speech”, implying this explained his predicament.

However, Lai was not prosecuted because his media group reported the news or expressed opinions. The crux of the prosecution’s case is that he engaged in seditious activity and worked with foreign powers to endanger national security. If true, these are crimes that have nothing to do with legitimate journalistic activity but everything to do with harming China.

Although the International Covenant on Civil and Political Rights applies in Hong Kong and protects the right to free speech, it stipulates that the right is not absolute. It may, for example, be restricted for “the protection of national security or public order” (Art.19.3). And Lai is being prosecuted because he allegedly overstepped the mark.

D. Lai’s incarceration breaches the Sino-British Joint Declaration (JD)

Although this myth is risible, the British prime minister, Sir Keir Starmer, has breathed life into it. When asked in Parliament last year by Sunak if Lai's imprisonment breached the JD, he said it did.

This was nonsensical, and, not surprisingly, he did not particularize. However, the JD said nothing about national security, which is the basis of Lai’s current prosecution. It also never indicated that convicted fraudsters like Lai should not be imprisoned.

Although desperate to keep the Sinophobes at bay, Starmer, on reflection, must deeply regret endorsing this bizarre myth.

E. Lai is a British citizen and should be treated accordingly

It is sometimes claimed that Lai is being denied the protections that are his due as a British national.

In 2023, for example, the former leader of the British Conservative Party, Sir Iain Duncan Smith, told Parliament that Lai “is and has always been a full British citizen”, and was therefore entitled to particular protections. He had clearly not familiarized himself with China’s nationality laws (or else was simply not interested in understanding the legal position).

Lai, who was born in Guangzhou in 1947, is ethnically Chinese. Although he came to Hong Kong when he was aged 12, this did not affect his Chinese nationality. Like, for example, Indonesia, Japan, and Laos, China does not recognize dual nationality, and the fact that the British gave him one of their passports in 1996 (for reasons unknown) is neither here nor there.

Although Chinese nationality can be renounced, it is not automatic, and certain procedures must first be followed. A formal application is required, with legitimate reasons given. However, Lai reportedly disregarded the formalities, meaning, as he must have known, he never divested himself of his Chinese nationality.

He is, therefore, being treated in exactly the same way as any other detained Chinese national. His foreign documentation has no standing and confers no entitlements, consular or otherwise.

F. Lai decided to remain in Hong Kong while others fled

In an effort to glorify him, it is often claimed that Lai’s commitment to Hong Kong is such that he elected to stay while lesser mortals ran away.

In 2024, for example, Rishi Sunak said Lai “chose to stand by his values and remain in Hong Kong, despite the changing political landscape”.

However, the truth is more prosaic. On May 28, 2020, the National People’s Congress took its historic decision to move forward with the Hong Kong National Security Law (“528 decision”), which was then enacted on June 30, 2020.

Realizing the game was up, the likes of Nathan Law Kwun-chung hastily packed their bags and, as June 30 approached, fled to the West. For his part, Lai, who was already on bail for public order offenses, urgently asked a court, also shortly before June 30, to vary his bail terms so he could visit Canada. However, the Judiciary, realizing he might not return, refused to let him go.

Although it will never be known if Lai would have returned from Canada, it cannot have been a coincidence that he sought to go there just days before the NSL — under which he was later charged — was enacted.

G. Lai has been arbitrarily detained because of the outstanding national security charges

In an attempt to evoke sympathy, this myth has been vigorously propagated in the West. Amnesty International, for example, claimed Lai's “years-long pre-trial incarceration (arose) because his newspaper dared to criticize the government”.

However, this myth could not be wider of the mark. In December 2022, Lai was convicted of two offenses of fraud and sentenced to five years and nine months’ imprisonment. As a convicted fraudster, he is now serving out that sentence, which is wholly unrelated to national security.

H. Lai is detained in solitary confinement for punitive purposes

This myth is beloved of Lai’s propagandists and has been endlessly recycled. For example, writing in the Catholic Herald (Sept 24), George Weigel, a religious affairs commentator, claimed it was Lai's faith that had “kept him in solitary confinement for over 600 days”. He may, sadly, have actually believed this, but it was not Lai’s faith that explains his separation from the general prison population.

The Commissioner of Correctional Services is empowered to make arrangements to prevent a person in custody from associating with other prisoners. It can be done for a prisoner’s safety and well-being, and any detainee may request it. As the authorities confirmed last November, it was Lai himself who requested solitary confinement, and his wish was honored.

If Lai’s situation is as oppressive as the myth makers claim, he can ask at any time to be allowed to mingle with the general prison population. However, as things stand, he has not, as is his right, made any such request.

I. Lai’s health issues are not being adequately addressed during his imprisonment

This myth owes much to Gallagher, who, for example, told the UN Human Rights Council earlier this year that Lai's detention “poses grave risks to his health”.

Her claim, however, is easily nailed. Although, given his age (77), Lai has some health issues, they are being fully addressed.

As Lais solicitors, Robertsons, have confirmed, he is being properly treated in detention and has access to sunlight (the propagandists had suggested otherwise). On their client’s instructions, they announced “Mr Lai wishes to make known that he has been receiving appropriate medical attention for conditions affecting him, including diabetes”.

Moreover, the Correctional Services Department has confirmed that Lai is receiving regular medical checkups. Indeed, the Prison Rules require necessary and appropriate medical services to be provided to everybody in the department’s care. Every correctional institution, including Lai’s, has a hospital or sick bay where medical services are provided by doctors and staff with professional nursing qualifications.

If anybody in custody, including Lai, requires specialist treatment, intensive care, or surgery, it is provided at a public hospital.

J. Lai should be released because of his age and health

This myth is relatively new, and its deployment is a sure sign of desperation. In September, for example, Gallagher’s legal team, in what it billed as an “Urgent Appeal”, told the UN’s human rights experts that Lai should be released because of his advanced years and associated health issues.

This was the ultimate “try-on”. In Hong Kong, as in other common law jurisdictions, elderly convicts and criminal suspects cannot expect to be suddenly released because of their age (or health). If it were otherwise, elderly bank robbers, drug traffickers, killers and pedophiles would escape their just deserts. Apart from anything else, this would have a devastating effect on the victims of crime, whose interests require protection.

In Hong Kong, as in the UK, there is a not inconsiderable number of elderly people in detention (including offenders in their 80s), some convicted and others undergoing trial. However, their age cannot buy them freedom, as any lawyer worth his salt should know.

Gallagher’s stance, therefore, is politically driven and disregards the criminal justice policies of the common law world.

K. Lai’s defense has been disadvantaged by his inability to retain an overseas lawyer to represent him

In rare cases, overseas lawyers can be admitted to conduct cases in Hong Kong on public interest grounds. Although Lai intended to hire a London-based barrister, Tim Owen KC, to lead his defense team, this was not possible because of potential national security concerns.

This upset some critics, including, for example, Lai’s former employee, Mark Clifford, who complained that Lai was “denied his first choice of lawyer”. However, Clifford, who now operates the Beijing-hostile “Committee for Freedom in Hong Kong Foundation”, has, for reasons best known to himself, wholly ignored the quality of Lai’s actual defense team.

Under the Basic Law, accused persons are entitled to choose any lawyer they want from the pool of locally qualified lawyers (Art.35). Exercising this right, Lai selected a first-class legal team, headed by a top criminal barrister, Senior Counsel Robert Pang, and including New Zealand King’s Counsel Marc Corlett. Supported by Robertsons, Pang’s team has skillfully conducted Lai’s defense, taking every possible point on his behalf.

He could not, whatever the myth makers might claim, have been more capably represented, and Owen’s exclusion was a complete red herring.

L. Although Lai is a Roman Catholic, he has been denied Mass

When reports surfaced that Lai was being refused Holy Communion, the ideologues were apoplectic, none more so than Benedict Rogers, the serial fantasist. The co-founder of Hong Kong Watch, the anti-China propaganda outfit, Rogers said the reports “illustrate the cruel vindictiveness of the regime that has imprisoned him”. As with his other myths, this one owed nothing to reality.

In fact, the Correctional Services Department respects the religious beliefs of its inmates and facilitates religious worship. It includes respecting an individual’s wishes, including whether or not to receive Holy Communion. This has been confirmed by Robertsons, who, on Sept 27, 2024, debunked the claims being made by Rogers and others about their client.

In a statement, issued through The Witness, Robertsons confirmed that Lai was aware he could receive Holy Communion through a special arrangement with the department, even though this required a priest to hold a Mass specifically for him.

It was a world away from the picture painted by Rogers, who has yet to apologize for his outburst. If Lai’s own lawyers are satisfied with his religious arrangements, there is no reason for anybody else to be concerned.

Conclusion

Although lies can do considerable harm, few are immune to sunlight. Big or small, they invariably crumble upon forensic scrutiny. Although, in their determination to harm Hong Kong, the propagandists have weaponized Lai, the truth cannot forever be suppressed. Whenever, therefore, they raise their ugly heads, the myth makers must be exposed for what they are, and their myths must be debunked.

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

The views do not necessarily reflect those of China Daily.