Grenville Cross says Western politicians should get real and cut their politicking over the case
“Wisdom and goodness to the vile seem vile; Filths savour but themselves”, or so said William Shakespeare’s King Lear. Anyone doubting his words will hopefully have seen the light over the last few days. On Feb 9, following the sentencing of the Apple Daily founder, Jimmy Lai Chee-ying, for national security crimes, his Western allies rushed to judgment, unleashing a torrent of invective, half-truths, and falsehoods.
First out of the traps was the British foreign secretary, Yvette Cooper. She declared Lai had been imprisoned “for exercising his right to freedom of expression, following a politically motivated prosecution” (Feb 9), and called on the “Hong Kong authorities to end his appalling ordeal”. This was delusional and demonstrated that she had not studied either the 855-page reasons for the verdict or the 48-page reasons for the sentence. If she had done so, she would have discovered that Lai was the mastermind behind conspiracies to undermine the “one country, two systems” principle, to provoke hostile responses from foreign powers, and to harm China’s political system. This was wholly beyond the pale, and an abuse of the freedoms of speech, of the press, and of publication guaranteed by the Basic Law (Art.27). Self-respecting journalists everywhere can understand this, and it is extraordinary that Cooper cannot.
In an ugly slur, Cooper even accused China of disrespecting the Sino-British Joint Declaration of 1984, demonstrating that she was unfamiliar with its contents and with the Basic Law (which brought it into effect). The Basic Law provides for the continuation of the common law legal system, and underpins the rights of criminal suspects. This was why Lai received a fair trial before independent judges, conducted in accordance with the traditions of the common-law world. He enjoyed the presumption of innocence, was defended by a high-powered defense team, was able to cross-examine his accusers and present and call evidence, and was only convicted after prosecutors established his guilt beyond a reasonable doubt.
Nobody reading Cooper’s remarks would have realized any of this, and she clearly had no interest in setting the record straight. She undoubtedly feared that a truthful account might alienate the approximately 170,000 Hong Kong people who have moved to the United Kingdom since 2020, which is the last thing her Labour Party wants. After all, many of them can vote in the next general election, which could be a close-run thing.
The UK’s Daily Telegraph (Feb 10), taking its cue from Cooper, compounded her fatuity. As the British prime minister, Sir Keir Starmer, visited Beijing last month and reportedly raised Lai’s situation with his hosts, he was accused of a “failure to persuade China to release the Hong Kong democracy activist and media tycoon Jimmy Lai”. If nothing else, this demonstrated that the editor was clueless about how Hong Kong’s criminal justice system operates under the “one country, two systems” principle. As in the UK, defendants undergoing trials cannot be arbitrarily released, and justice always takes its course, whether resulting in acquittals or convictions. Trials are conducted by judges whose independence is constitutionally guaranteed and who discharge their duties, as the Basic Law puts it, “free from any interference” (Art. 85). As the Basic Law is a national law, Beijing adheres to it and does not seek to influence trials. There was no way the central authorities would violate their own law by telling the Hong Kong Special Administrative Region to release Lai.
As if its ignorance of the legal position was not bad enough, the newspaper, eager to portray Lai as a “martyr”, rounded off its editorial by telling its readers, “The 20-year sentence is the highest that can be imposed.” This was untrue, as life imprisonment is the maximum penalty (NSL Art.29). Fact-checkers responsible for errors like this will normally have their knuckles rapped by their editors, but on this occasion, they will presumably be applauded. After all, in the land of the Sinophobe, the fantasist is king.
Hard on Cooper’s heels came the US secretary of state, Marco Rubio. He called Lai's sentences “unjust and tragic”, accusing Beijing of having gone to “extraordinary lengths to silence those who advocate fundamental freedom in Hong Kong”. Although he highlighted Lai’s detention for over five years, he ignored the primary reason for it — the sentence of five years and nine months imposed upon him for two fraud offenses in December 2022. Rubio’s claim that Beijing was involved in silencing Lai will undoubtedly play well with the anti-China lobby, including the national security suspects Nathan Law Kwun-chung and Joshua Wong Chi-fung, whom he nominated for the Nobel Peace Prize in 2018. However, it will not wash with those who actually experienced the 2019-20 insurrection, witnessed Lai’s significant involvement, and studied the evidence against him. Far from being “unjust”, Lai has been sentenced to 20 years’ imprisonment by three judges for being the mastermind of vile conspiracies intended to harm the Hong Kong SAR and China as a whole.
Also keen to jump on the bandwagon was Kaja Kallas, the European Union’s high representative for foreign affairs (and EU Commission vice-president). She regurgitated Cooper’s comments, saying the EU “deplores” the outcome of a “politically motivated prosecution”, without providing a scintilla of evidence (she had none). A political lightweight reportedly eyeing her boss’s job (EU Commission President Ursula von der Leyen), Kallas has, like the unlamented Liz Truss in the UK, advanced her career by demonizing Beijing. Having stoked anti-China sentiments while Estonia’s prime minister, she denounced China as a “threat” at her confirmation hearings for her present role, and it worked. Whatever, therefore, she says about Hong Kong cannot be taken seriously, least of all her call “for the immediate and unconditional release of Jimmy Lai”, a convicted felon.
Whereas Lai’s Hong Kong legal team comprised six barristers (including a Senior Counsel and a King’s Counsel), his “international legal team” led by Caoilfhionn Gallagher, comprised five barristers (including two King’s Counsel). Over the years, their fees will have been astronomical, but Lai has nothing to show for it. However, Gallagher, who called Lai’s sentences “an affront to justice”, apparently sees him as the gift that keeps on giving, envisaging an ongoing role for herself (assuming Lai’s pockets, or those of his backers, are deep enough).
Echoing Cooper, Rubio urged “the authorities to grant Mr Lai humanitarian parole”. He was presumably referring to the Basic Law, which authorizes the chief executive “To pardon persons convicted of criminal offenses or commute their penalties” (Art.48 (12)). This mechanism enables miscarriages of justice to be addressed (inapplicable in Lai’s case) and for mercy to be exercised in exceptional cases (nothing suggests Lai’s case is in any way exceptional). In any event, the power, rare as it is, is normally only exercised after the judicial process is complete (meaning after Lai has exhausted the appeal process), and that point is still some way off.
After Lai's sentencing, the chief executive, John Lee Ka-chiu, described his crimes as “heinous”. He added that Lai “for sure deserves his punishment for all the harm he has done”. It appears, therefore, that Lee will not be in any rush to interfere with a sentence which, as he put it, “manifests that the rule of law is upheld and justice is done, and also brings great relief to all”. Moreover, as Lee will know, Lai’s legal team assured the sentencing judges that none of his health issues was “life-threatening”. Therefore, Cooper, Rubio, and Kallas should get real and cut their politicking.
Although some foreign leaders, including Starmer, have sought to go over Lee's head by lobbying President Xi Jinping, they face a significant hurdle. Xi is a fervent believer in the “one country, two systems” principle and is committed to its protection. The central authorities have always avoided gratuitous interference in the internal functioning of the Hong Kong SAR’s legal system, and there is no reason to suppose they will start now. Even though, for example, Lai’s trial could theoretically have been transferred to the Chinese mainland under the NSL (Art. 55), given the attempts by foreign forces to derail it, Beijing had complete trust in Hong Kong’s ability to handle the case appropriately, and so it proved.
Therefore, Lai’s best option, assuming his lawyers give him the go-ahead, is to plead his cause before the Court of Appeal, and, if that fails, before the Court of Final Appeal. Although Lai once enjoyed a privileged lifestyle that conferred influence, opened doors, and saw him feted by foreign leaders, those days are over. The sooner, therefore, he comes to terms with his circumstances, the better it will be for his equanimity. His situation is indistinguishable from that of any other elderly person convicted of grave offenses, which is what equality of treatment is all about.
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.
