On Jan 2, the national security trial of former media magnate Jimmy Lai Chee-ying got underway in the Court of First Instance. He pleaded not guilty to two conspiracy charges that allege collusion with foreign forces to harm the Chinese mainland and Hong Kong, and to a third charge, alleging a seditious conspiracy to incite public hatred against the authorities. 

Apart from Lai, three companies associated with Lai’s former newspaper, Apple Daily, are accused of conspiring to publish seditious materials and of conspiring to collude with foreign forces.

The trial, conducted before a three-judge panel, is expected to last up to 80 days.

In outlining the prosecution case, the prosecutor, Anthony Chau Tin-hang, called Lai a “radical political figure”. Chau said Lai had, under the guise of “fighting for freedom and democracy”, conspired with others to call on foreign governments, notably the US, to “impose sanctions, blocks or engage in hostile activities” against the regional and national governments.

Chau also identified various people who he said had assisted Lai in multiple ways, by acting, for example, as his “agents” or “intermediaries”.

Apart from Lai’s aide, Mark Simon, they included the likes of Benedict Rogers, the serial fantasist who runs Hong Kong Watch (the anti-China propaganda outfit); Rogers’ henchman, Luke de Pulford, executive director of the Inter-Parliamentary Alliance on China (IPAC) (which peddles myths about China in national legislatures); James Cunningham, the former US consul general in Hong Kong and chairman of the US-based Committee for Freedom in Hong Kong Foundation (whose president is Mark L Clifford, former director of Lai’s Next Digital Ltd, publisher of Apple Daily); and Bill Browder, founder of the Global Magnitsky Justice Campaign (which promotes the sanctioning of targeted officials, invariably those on US blacklists).

Only time will tell if the prosecution can prove its case, but some of those identified are clearly rattled.

Whereas Rogers resorted to bluster, saying he was not concerned for himself but only for Lai and his family, Browder was more forthright, telling the Index on Censorship his naming was “a very real threat”. He said he could “imagine a scenario in which the authorities decide to issue Interpol Red Notices against me, Benedict Rogers, Luke de Pulford and others and request assistance”.

Be that as it may, the prosecution must first prove its case against Lai. The prosecution is expected to call five accomplice witnesses to demonstrate how he exercised “full control” over Apple Daily, and was the mastermind of the alleged conspiracies. A key witness is likely to be Andy Li Yu-hin, who pleaded guilty in 2021 to conspiring with Jimmy Lai, Mark Simon, and Finn Lau Cho-dik (of lam chau, or “burnism”, infamy) to ask foreign forces to impose sanctions on Hong Kong and China.

In 2020, Li and 11 others tried to escape to Taiwan by boat, but were apprehended by the China coast guard in mainland waters. As an illegal border crosser, he was then detained for seven months in Shenzhen before being returned to Hong Kong to face the music.

When Li pleaded guilty, together with another confederate, Chan Tsz-wah, a paralegal, he said, “I agree to the facts, and I would like to say sorry.” The admitted facts indicated that Lai and Simon were the masterminds of the conspiracy, and had enlisted others to do their dirty work for them abroad, including Li and Chan. He acknowledged that Lai had provided “substantial financial support” to an “international propaganda” campaign that initially sought foreign intervention during the 2019 protests, but was then expanded to seek foreign sanctions on Hong Kong and the mainland.

The admitted facts also showed that, while Chan reported to Lai and Simon, Li assumed a leading role in the organization “Fight for Freedom, Stand with Hong Kong” (SWHK), and allegedly raised over HK$17 million ($2.18 million) for it by crowdfunding. According to Li, SWHK’s function was to denigrate Beijing internationally, demonize the Hong Kong government and its police force, and advance Lai’s chi bao strategy (involving administrative and economic chaos in China).

Whereas Lai and Simon assisted Andy Li to forge SWHK’s overseas contacts, Li, with Lai’s approval, admitted sending a sanctions list targeting 144 politicians and officials to the then-managing director of the US-based Hong Kong Democracy Council, Samuel Chu Muk-man (the son of Occupy Central co-founder Chu Yiu-ming). Having received the list, Chu passed it not only to US senators Ted Cruz and Rick Scott for action, but also to Luke de Pulford, a named co-conspirator in the UK.

In advancing their plans, the conspirators created an international network hostile to China. They sought to harm their home city in various ways, apart from sanctions. They advocated an end to its trade preferences, the isolation of its law enforcement agencies, and the suspension of its fugitive-surrender and mutual-assistance agreements with 32 countries.

Although, legally, the facts agreed by Li in 2021 are not evidence against Lai, he is expected to testify along similar lines at his trial, and his evidence could be crucial. The trial will now follow its natural course, with a mass of evidence being placed before the court. Once the prosecution has presented its case, Lai will be able to testify in his own defense, and to call witnesses on his behalf. He will be convicted only if his guilt has been proved beyond reasonable doubt, the test applied throughout the common law world.

However, this has not deterred foreign elements from trying to derail Lai’s trial. Since 2022, a group of five London-based barristers, calling themselves Lai’s “international legal team”, has been urging foreign

governments and others to interfere with Hong Kong’s criminal justice system by demanding Lai’s release. On Dec 12, the team, led by Caoilfhionn Gallagher KC, engineered a meeting between Lai’s son, Sebastien, and the British foreign secretary, David Cameron (which Gallagher attended). Although Gallagher had not disclosed who was financing her activities, Cameron, keen to appear sympathetic, played along, urging the Hong Kong authorities to “end the prosecution and release Jimmy Lai”.

As a wily politician, Cameron undoubtedly calculated that, by joining Gallagher in cloud cuckoo land, he might attract some brownie points from the anti-China brigade at no particular cost to himself, and so it proved. Thus, for example, Hong Kong Watch’s Benedict Rogers not only cracked open the champagne but called for Lai to be knighted (presumably as a precursor to sainthood).

Gallagher has spent almost 24 months lobbying foreign politicians and jurists to interfere in Lai’s criminal proceedings, and it has not availed him one iota. The legal system in Hong Kong is sturdy, and attempts from abroad to interfere with the course of public justice are doomed to failure. Whoever has bankrolled Gallagher’s activities will inevitably feel shortchanged by her lack of results, but she has still not given up.

In outlining the prosecution case, the prosecutor, Anthony Chau Tin-hang, called Lai a “radical political figure”. Chau said Lai had, under the guise of “fighting for freedom and democracy”, conspired with others to call on foreign governments, notably the US, to “impose sanctions, blocks or engage in hostile activities” against the regional and national governments

On Jan 4, on her Doughty Street Chambers website, Gallagher announced her team had filed “an urgent appeal with the United Nations Rapporteur on Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment”. However delusional, the team expressed “grave concerns over the treatment of a key prosecution witness in the ongoing trial of Jimmy Lai, Andy Li (Li Yu-hin), and its implication for Mr Lai’s trial.” Without any firm evidence, the team suggested Li may have been tortured while in mainland custody, and this was why he confessed and agreed to testify against Lai.

It did not appear to have occurred to Gallagher that Li, like many other criminals before him, had realized the game was up and wanted to mitigate his criminality by showing remorse and cooperating with the authorities.

Moreover, Gallagher submitted that if there was “credible evidence” that Andy Li’s testimony may have been improperly obtained, “it must be discarded and should not be relied upon”. This was farcical, as the UN Rapporteur is no better placed than Gallagher to influence the admissibility of evidence at Lai’s trial. She undoubtedly wanted her paymasters to think she was at least “doing something”, even if it was only grabbing at straws. Given she could not help Lai, she hoped nonetheless to besmirch China.

Interestingly enough, Gallagher tried this tactic previously, albeit to no avail. On April 8, 2022, she also lodged an “urgent appeal”, complaining to the UN Working Group on Arbitrary Detention about Lai’s “legal harassment and imprisonment”. Although she was given short shrift, the failure of her earlier publicity stunt taught her nothing.

It is little wonder that Robertsons, the law firm representing Lai in his national security trial, has publicly dissociated itself from Gallagher and her team. On Jan 13, 2023, it announced that none of Lai’s legal advisers in Hong Kong was “in any way professionally associated with the ‘international legal team’ in relation to Mr Lai’s legal proceedings”. They explained they acted “exclusively” for him in his criminal cases, and that Lai had not instructed Gallager.

Apart from Robertsons, Lai is represented at trial by a team of experienced local barristers, led by Robert Pang Yiu-hung SC and including Marc Corlett KC (from New Zealand). They must have been appalled by Gallagher’s grandstanding, not least because it impinged upon their own role as trial counsel.

If this is indeed part of Lai’s case, it is open to Pang to try to discredit Andy Li’s evidence in cross-examination on the basis that it was coerced. As a leading criminal barrister, he needs no advice from Gallagher on how to conduct his case. Claims of impropriety are not uncommon in criminal trials, and judges know exactly how to handle them, as Gallagher must know. Her attempt to steal a march on Pang was uncalled for, and will not have amused him.

It is now almost two years since Gallagher, in a blaze of publicity, announced, on Feb 7, 2022, that she would act as Lai’s “international counsel” (without revealing who was instructing her). She declared she would “pursue all legal remedies to vindicate Mr Lai’s rights”, which was just hot air. Since then, she and her team have indulged in ugly posturing around the world, rubbing shoulders in the process with some of the West’s most notorious Sinophobes. However, she has nothing to show for her efforts, and her antics may actually have harmed Lai’s interests.

Although a busted flush, Gallagher will be laughing all the way to the bank. She will also be enjoying her newfound status as a propagandist among those, like Hong Kong Watch and IPAC, who spend their days slagging off China. If this provides her with some consolation as she contemplates the failure of her mission, so be it.

In the meantime, Jimmy Lai, despite Gallagher’s machinations, will receive a trial that is fair and complies with international standards of criminal justice.

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.