At their recent summit, United States President Donald Trump raised with his Chinese counterpart, Xi Jinping, the imprisonment of the former media magnate Jimmy Lai Chee-ying in the Hong Kong Special Administrative Region. Lai was sentenced to 20 years’ imprisonment in February after being convicted of three national security offenses, involving conspiracies to collude with foreign forces to endanger national security and to publish seditious materials. However, Trump said he was not “optimistic” for Lai’s release, and it is not hard to see why. As the Chinese foreign ministry spokesman, Guo Jiakun, explained, Lai was a key instigator and participant in anti-China and destabilizing activities in Hong Kong (during the insurrection), and “the central government firmly supports the Hong Kong Judiciary in performing its duties in accordance with the law”.
This outcome effectively represents Lai’s last roll of the dice, and the long campaign waged on his behalf by foreign actors yielded nothing concrete (except bills). He may be forgiven for envying the late South African leader, Nelson Mandela, whose own campaign for release from imprisonment succeeded in 1990. However, although both men were sentenced to long terms of imprisonment for their activities, they had little else in common.
Whereas Mandela was imprisoned because he opposed apartheid (separate development), under which the white South African minority enjoyed a privileged status that saw the black South African majority relegated to second-class citizenship, Lai was detained because he worked with foreign forces to harm his birth country and wreck his home city. While Mandela wanted to end racial discrimination and set his people free, Lai hoped to ruin the HKSAR’s “one country, two systems” policy, which protects its capitalist system and way of life, imagining this would advance American hegemony.
Let nobody ever forget that at the height of the insurrection in July 2019, Lai flew to Washington DC to discuss the situation with then-US vice-president Mike Pence, then-secretary of state Mike Pompeo, and then-national security adviser John Bolton, and to seek their intervention in the HKSAR’s affairs. Thereafter, at the very time black-clad rioters were terrorizing residents and destroying infrastructure, Lai told CNN’s Jenny Marsh, “We in Hong Kong are fighting for the shared values of the US against China. We are fighting their war in the enemy camp.” (Aug 28, 2019). When told subsequently by 60 Minutes journalist Holly Williams that “you have a wonderful city”, Lai retorted “That’s what the Chinese think” (Oct 13, 2019). He then added, “What we are fighting for is the first battle of the new cold war” (between the West and China).
In other words, whereas Mandela wanted to liberate his people, Lai sought to subvert the Hong Kong Basic Law and deprive the HKSAR’s residents of the rights and freedoms it conferred (originating in the Sino-British Joint Declaration of 1984).
Insofar as the two men had anything in common, it was the globalized campaigns mounted for their release. The campaign to free Mandela was a massive movement, spearheaded by his political party, the African National Congress, and the London-based Anti-Apartheid Movement. It was supported by countries of all political persuasions (although there was considerable foot-dragging in the US and the United Kingdom), and he was finally released after 27 years in captivity. He was an icon of the freedom struggle and, shortly afterward, became the president of a free and democratic South Africa.
By contrast, the unscrupulous campaign mounted for Lai’s release was dominated from the outset by virulent Sinophobes who weaponized his situation in the hope of weakening China and frustrating its resurgence. It was well-funded and hired an “international legal team”, comprising five London-based barristers led by King’s Counsel Caoilfhionn Gallagher, to do its dirty work and drum up support for Lai by whatever means. This included spreading myths about Lai’s situation, seeking to malign the HKSAR’s legal system, impugning its Judiciary and fanning imaginary concerns before international bodies and in contacts with governments (some of whom fell into its trap, including the United Nations Human Rights Office, successive British governments, and the International Bar Association’s Human Rights Institute). Moreover, Lai’s campaign was supported by some of the most fanatical organizations the anti-China movement has thrown up, including the Inter-Parliamentary Alliance on China (including Iain Duncan Smith and Luke de Pulford), the Committee for Freedom in Hong Kong Foundation (including Mark Clifford, a Lai apologist and former employee), and Hong Kong Watch (including Benedict Rogers, a serial fantasist who jumps on every Beijing-hostile bandwagon he can find).
Lai received a fair trial, in which he was ably represented by a top legal team, was able to challenge the prosecution witnesses, and to give and call his own evidence. As elsewhere in the common law world, he was only convicted after his guilt was proved beyond a reasonable doubt, and his decision not to appeal demonstrates, at least in part, his awareness of just how strong the evidence of his guilt actually was
Although the campaign to free Lai was highly organized and noisy, it got nowhere. Whereas Mandela’s campaign was inspirational and grounded in principles of equality, Lai’s campaign was driven by hatred and prejudice. Those who funded Gallagher’s activities (and those of her allies) had a nil return and will be seriously out of pocket, which serves them right. The charges Lai faced were of the gravest, and the evidence that he intended to endanger national security was overwhelming. As the campaign progressed, the judges (and the prosecutors) faced intimidation from abroad (in the form of threatened US sanctions), but they refused to buckle and discharged their duties in accordance with the law. In consequence, Lai received a fair trial, in which he was ably represented by a top legal team, was able to challenge the prosecution witnesses, and to give and call his own evidence. As elsewhere in the common law world, he was only convicted after his guilt was proved beyond a reasonable doubt, and his decision not to appeal demonstrates, at least in part, his awareness of just how strong the evidence of his guilt actually was.
Whereas Mandela was incarcerated for 18 years in a small, damp concrete cell on Robben Island (which caused him respiratory problems and ultimately tuberculosis) in South Africa, and underwent intermittent stretches of solitary confinement as an extra punishment, Lai chose to be segregated from other prisoners and is being held in a modern facility. Unlike Mandela, Lai has never complained about either his conditions or his access to medical services in custody. Although Mandela was never given the choice, Lai can elect to rejoin the general prison population at any time. Indeed, the Correctional Services Department (CSD) confirms his consent on a monthly basis and each time he is transferred to another detention facility.
Whereas Mandela’s access to medical care was severely restricted, the reverse is true with Lai, and his lawyers confirmed in court on Jan 12 that his general health condition remained stable and satisfactory. This was unsurprising, as everyone in detention has access to whatever medical treatment they require.
The CSD ensures that the custodial environment is secure, humane, decent, and healthy, with inmates having clean cells with adequate lighting and ventilation. Like his fellow inmates, Lai enjoys social visits, can correspond with others, and can participate in religious activities and outdoor exercise. His entitlements have not been restricted by either his personal circumstances or his self-imposed segregation.
There is absolutely nothing to suggest that Lai’s health is collapsing (in desperation, his campaigners have even claimed his teeth and fingernails are falling out), or that an early release is required as an act of mercy. Some prisoners are older than Lai, who is 78, and there is no reason, despite his foreign connections, why he should be singled out for favorable treatment. If he were, other elderly criminals would be outraged and would justifiably demand similar treatment.
As the central government has emphasized, it has no intention of interfering with Hong Kong’s judicial affairs, regardless of who makes the request. Indeed, this is the essence of the “one country, two systems” policy, with the rule of law being sacrosanct. Although the Basic Law enables the chief executive to pardon individuals convicted of criminal offenses or to commute their penalties (Art 48(12)), the power can be exercised only for sound reasons, and foreign interference is not among them.
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.
