Although the trial of the former media magnate Jimmy Lai Chee-ying on charges involving sedition and collusion with foreign forces, was scheduled to begin on Dec 18, there were last-minute attempts from abroad to disrupt it.
The Five Eyes intelligence alliance comprises Australia, Canada, the UK, the US and New Zealand, and its two senior members, the UK and the US, sought Lai’s release in clearly coordinated moves.
On Dec 17, the new British foreign secretary, Lord (David) Cameron, rushed out a crass statement. Having been lobbied five days previously by Lai’s son, Sebastien, and a prima donna called Caoilfhionn Gallagher KC from Jimmy Lai’s “international legal team”, he claimed the National Security Law for Hong Kong (NSL) was “a clear breach of the Sino-British Joint Declaration”. He then urged the authorities to “end the prosecution and release Jimmy Lai,” who was a “British national”.
On Dec 18, just hours before the trial started, the US State Department spokesman, Matthew Miller, also weighed in. He said, “We strongly condemn the National Security Law prosecution of pro-democracy advocate and media owner Jimmy Lai.” He then called on the “Hong Kong authorities to immediately release Jimmy Lai and all others imprisoned for defending their rights.”
The US, of course, remembers Lai very well. When he visited Washington in 2019, at the height of the insurrection in Hong Kong, he was greeted by Washington’s power brokers like visiting royalty. Having been red-carpeted by the then-secretary of state, Mike Pompeo, he was then ushered into the White House, to meet the then-vice-president, Mike Pence. However surprising, they clearly wanted to show how much they valued him.
Be that as it may, both attempts to interfere with Hong Kong’s highly acclaimed legal system were despicable, and only succeeded in demeaning their makers. The city’s criminal justice system is highly rated globally, which is why Hong Kong was ranked 23rd out of the 142 jurisdictions surveyed in the “World Justice Project Rule of Law Index 2023” (ahead, for example, of the US, at 26th).
When people like Cameron and Miller, for base political motives, seek to undermine the smooth operation of one of Asia’s most successful common law systems, they show themselves in their true colours. Although their governments claim to espouse the “international rules-based order”, their attempt to disrupt the course of public justice in Hong Kong served only to highlight their insincerity.
Apart from anything else, their calls for Lai’s release were nonsensical. Even if they were heeded and Lai’s NSL trial were ended, he would still not walk free. If the two men had studied his circumstances, they would have known he was convicted of fraud in December 2022 and is currently serving a sentence of five years and nine months’ imprisonment.
It is a pity, moreover, that Cameron, despite the pressure from Conservative party hawks, chose to regurgitate the tired old Foreign Office myths about the NSL that were dreamt up by his unlamented predecessors, Dominic Raab and Liz Truss. Although he trotted out Raab’s myth about the NSL contravening the Sino-British Joint Declaration (JD) 1984, he cannot have read it. Had he done so, he would have known the JD said nothing about national security, for obvious reasons.
Just as in the UK, national security is a matter for China, so it was not mentioned in the JD. Every country is entitled to protect its security, and the government of which Cameron is now a member enacted its draconian National Security Act in July (whose “chilling effect” was denounced in Parliament).
Once it became clear that Hong Kong was unable to enact its own national security legislation, because of foreign interference, Beijing was obliged to pass the NSL in 2020. If it had not done so, the JD’s aspirations, which Cameron apparently cherishes, would have been destroyed by those who wanted the “one country, two systems” concept to go up in smoke.
Instead, therefore, of whining away fatuously from afar, Cameron should have thanked Beijing for having saved Hong Kong from the arsonists, the rioters and the wreckers.
Moreover, there are a number of British judges serving in Hong Kong, including five non-permanent judges in the Hong Kong Court of Final Appeal. They include two former presidents of the UK Supreme Court, Lords (Nicholas) Phillips and (David) Neuberger. If Cameron is interested in anything beyond sound bites, he would be well advised to ask them about the professionalism of Hong Kong’s legal system before again ranting away about things he does not understand.
Indeed, if he wants to be taken seriously, the least Cameron can do is try to get on top of his portfolio. He certainly deserves better than the duff briefings he is receiving from the Foreign Office’s legal department and the braying bigots from Lai’s “international legal team”.
The British judges, moreover, would be able to assure Cameron that Jimmy Lai will enjoy all the fair trial protections available to defendants throughout the common law world. They could tell him how Lai will be able to give and call evidence and to challenge the prosecution witnesses. He will learn how Lai will enjoy the presumption of innocence, and will only be convicted if the prosecution has proved his guilt beyond reasonable doubt. If convicted, he can appeal to a higher court (and his earlier conviction for organizing an unauthorised assembly was quashed by the Court of Appeal in August).
In November, there were calls in the US Congress for President Joe Biden to impose sanctions on Hong Kong judges, including British nationals, and it is extraordinary that Cameron has not sprung to their defense. If he truly wishes to defend his own people, his duty is plain. Instead of propagandising about the NSL and making ludicrous demands for the release of a criminal suspect undergoing trial, he should be taking up the cudgels for his fellow countrymen who have been threatened by US politicians.
Instead of fretting about Lai, who is in safe hands, Cameron should be addressing a travesty of justice occurring now on his own soil. The Australian journalist and Wikileaks founder, Julian Assange, has been incarcerated in appalling conditions in the UK since April 2019. He is currently detained in London’s notorious Belmarsh prison as he fights extradition to the US on 17 charges of allegedly contravening its Espionage Act (1917).
Assange’s health has collapsed, and his only “crime” was to expose wrongdoing at the heart of the US government. He revealed, for example, the ambit of US misconduct during the Iraq occupation. He also disclosed how, at Guantanamo Bay, the US military prison in Cuba for terror suspects, new prisoners were held in isolation to soften them up before “enhanced interrogation”. The New York Times reported that, since 2002, about 780 prisoners have been held at Guantanamo Bay, of whom 30 remain, about which Cameron, strangely, has had nothing to say.
Assange, therefore, should be applauded for exposing such scandals and not persecuted by the British authorities. If Cameron is genuinely concerned about combating injustice, he should condemn the US for the outrages at Guantanamo Bay and then use his good offices to secure Assange’s release.
In his statement, Cameron called Lai “an outspoken journalist and publisher,” who had been targeted for expressing his “rights of freedom of expression”. His words, however, while inapplicable to Lai, who allegedly sought to harm his home by colluding with foreign forces, fit Assange like a glove. Instead of myth-making about Lai, Cameron should cut the hypocrisy and help Assange while there is still time.
As Hong Kong has a resilient legal system, it can withstand pressures of all types. In 2019, it was attacked from within by the insurrectionists, who firebombed the courts and threatened its judges, but it did not buckle. In the face of external shenanigans, the legal system, which is tried and tested, will also hold firm.
It will now be for the professional Judiciary to decide whether or not Lai is guilty, but only after a trial that satisfies the legal norms of the common law world.
Republished from China Daily on December 19, 2023.
Grenville Cross is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
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