By Dannis Kwok
December 16, 2022
Dennis Kwok was a member of the Hong Kong Legislative Council from 2012 to 2020. He is now a distinguished scholar at Georgetown University’s School of Foreign Service, and a partner at Elliott Kwok Levine & Jaroslaw LLP in New York.
One of the last dinners I had in Hong Kong before I left in late 2020 was with Jimmy Lai and other good friends.
We’d gathered for Shanghainese hairy crab season – an annual ritual for us. Around the dinner table was Anson Chan, the former chief secretary of Hong Kong, as well as Martin Lee, nicknamed the “father of democracy” in Hong Kong. During the dinner, Jimmy told us he was fully expecting the authorities to come arrest him and send him to jail under the draconian national security law. As a billionaire media mogul who created the now-shuttered Apple Daily newspaper, he was someone who could choose to live anywhere in the world – but he wanted to stay in Hong Kong. He is a devout Catholic, and firmly believes that God has put him in this position to be the “salt and light.”
Jimmy was arrested shortly thereafter, charged with foreign collusion under the national security law; the most severe punishment for such charges is life in prison. Due to the harsh bail conditions established by the law, which has been endorsed by the Hong Kong Court of Final Appeal, bail was denied to him and the many other political prisoners awaiting trial.
He has also been separately charged for allegedly allowing his private secretarial company to use a tiny portion of the Apple Daily headquarters, in apparent breach of the government corporation’s lease conditions. In most civilized countries, this would have likely resulted in a civil liability or a fine at most. Instead, Jimmy was sentenced to five years and nine months imprisonment on these charges last week – prosecuted by lawyers who are in charge of national security cases in Hong Kong, and ruled on by a judge designated by Hong Kong authorities to adjudicate national security charges. It is hard to fathom what a lease matter has to do with national security.
His trial on the foreign collusion charges was set to commence earlier this month. However, Jimmy’s choice of legal representation caused Hong Kong politicians to overreact once more. Jimmy wanted Tim Owen, a top British criminal barrister, to represent him; the Hong Kong Department of Justice and the Hong Kong Bar Association objected.
The Hong Kong trial court ultimately agreed that Mr. Owen’s representation would be in line with public policy, but the Department of Justice appealed twice, arguing that having a foreign barrister in a trial over charges of foreign collusion would compromise national security, and that there would be no way to ensure that this foreign barrister could be punished if he were to breach state-secret confidentiality. In their ruling against the department, however, Hong Kong’s Court of Final Appeal rightly pointed out that not only are there no “state secrets” involved in this case, these points were never raised by the Department of Justice earlier in the legal process.
Hong Kong’s government clearly felt this was politically unacceptable. And so, in November, the Chief Executive asked for an interpretation from the National People’s Congress in Beijing to overturn the ruling. It is unclear what Beijing will do with this request. Some pro-Beijing politicians in Hong Kong have floated the idea of simply banning Mr. Owen from coming on vague national security grounds.
Regardless, this represents a major blow to Hong Kong’s common law legal system. The right to choose your own defence lawyer was a fundamental right guaranteed under the Basic Law; now, that has been violated in the name of national security.
Jimmy’s trial has been adjourned to September, 2023, in part to align with Mr. Owen’s availability, and in part to give time for Beijing to respond. In the meantime, he remains behind bars. Justice delayed is justice denied – and that the Hong Kong court would even allow for such a travesty is particularly disconcerting.
It should be disconcerting to others in Hong Kong’s legal system, too. If Beijing does not allow a foreign lawyer to be involved in a national security case, then it would follow that it would also seriously restrain the jurisdiction of Hong Kong’s foreign judges. So what are Australian, Canadian and U.K. judges still doing sitting as non-permanent judges in the Court of Final Appeal?
Hong Kong’s judicial independence and basic human-rights guarantees have been substantially hollowed out. It makes a mockery of the promises made under the Sino-British Joint Declaration, and of justice.