The British national Jimmy Lai was the proprietor of Apple Daily, Hong Kong’s biggest-selling Chinese-language newspaper until it was closed down by the Hong Kong government in 2021. The paper had been a powerful critic of the repressive policies of the People’s Republic of China, and a persistent advocate for democracy in Hong Kong. The Basic Law (Hong Kong’s mini-constitution since its handover to China in 1997) provides that “the ultimate aim is the election of all members of the Legislative Council by universal suffrage”. Lai campaigned in his paper and in speeches and interviews to make that promise a reality, in the face of China’s determination to empty it of all meaning. For that, on Monday (15 December) he was convicted of colluding with foreign forces by the High Court after a trial lasting nearly two years. He will probably spend the rest of his life in jail. Lai had been in Beijing’s sights for years before his arrest. He was regularly denounced as a traitor in China Daily, as well as Ta Kung Pao and Wei Po – the two China-controlled papers in Hong Kong. There was never much chance of any other outcome.
There are two criticisms that might be made of the judicial crackdown on political dissent in Hong Kong. One is that the law is repressive. The other is that the judges are repressive, even where the law allows them some leeway. The extreme example of judicial repression was the conviction of 14 pro-democracy activists in May 2024 for campaigning to win a majority in the Legislative Council in the forthcoming elections. They had planned to use that majority to pressure the government into accepting their demands, by threatening to vote against the budget and thereby force the resignation of the chief executive. Every step in this plan was expressly authorised by the Basic Law. The defendants were convicted because they proposed to exercise their constitutional rights in a way that was unwelcome to the Hong Kong executive and the government of China.
Lai’s case is less straightforward. He was charged with real offences: publishing seditious material and colluding with foreign powers (primarily the United States) to impose sanctions on Hong Kong or China. There was some evidence to support the prosecution case. The main problem was the repressive nature of the law that the judges were charged with applying.
The charge of sedition was based on a colonial era law dating back to 1938. It was drafted in astonishingly wide terms. Among other things, it banned any words (spoken or written) which were intended “to bring into hatred or contempt or to excite disaffection against” the government of Hong Kong. The colonial government had not used these provisions since the communist-inspired riots of 1967. They were widely thought to have been repealed by the Hong Kong bill of rights ordinance of 1991. That law protected freedom of expression and automatically repealed any pre-existing legislation inconsistent with it. But the standing committee of the Beijing legislature was empowered to disapply any colonial legislation which it considered to be inconsistent with the Basic Law. In 1997, a few weeks before the handover, it disapplied the automatic repeal provision in the Bill of Rights. So the sedition law survived into the new political world.
The collusion charges were more important because they were based on the national security law, which provides for a maximum sentence of life imprisonment. The maximum sentence for sedition was only two years, which Lai has already served while awaiting trial. The national security law criminalises “requests” to any foreign country to impose sanctions on Hong Kong or China. But although more important to the state, the collusion charges were also more difficult to prove. Lai admitted pressing for sanctions before the national security law came into force, but said that he stopped when it became illegal on 1 July 2020. He was only at liberty for six months after that, and the evidence that he called for sanctions in that period was exceptionally thin.
It consisted of interviews or columns in Apple Daily in which Lai criticised the Chinese government and its national security law. The judges inferred that these statements were an “implicit and subtle” way of calling for more sanctions although there was nothing in terms about that. The nearest that the evidence came to supporting the prosecution case was a suggestion made by Lai to one of his assistants after the US ended Hong Kong’s special trade status that it would be better to sanction China than Hong Kong. This was said at a time when the assistant in question was known to be in touch with US officials. On the face of it, this is clutching at straws.
Hong Kong has adopted the International Convention on Civil and Political Rights and indeed embodied it in its law. The national security law itself provides that “the rights and freedoms, including the freedoms of speech, of the press, of publication… which the residents of the Region enjoy under the Basic Law… and the provisions of the International Covenant on Civil and Political Rights… as applied to Hong Kong, shall be protected in accordance with the law”. These provisions have simply been ignored, as they have in almost every other judgment of the Hong Kong courts on the national security law.
Reading through this very long judgment (it runs to 855 pages), one is constantly struck by the critical references on nearly every page to Lai’s hostility to China and the Chinese Communist Party, his criticisms of Chinese and Hong Kong officials, his objections to the national security law, his support for the pro-democracy movement and his preference for western over Chinese values, as if these things were self-evidently wrong and presumptive evidence of criminality. That is the abyss into which basic political freedoms have fallen in Hong Kong. In the end it does not matter whether it is the law or the judges who have suppressed basic political liberties in Hong Kong. The essential point is that those who criticise China or the Hong Kong government or organise themselves to press for a greater measure of democracy are liable to go to jail. These are the hallmarks of the totalitarian state which China has always been and Hong Kong is in the process of becoming.
The three judges who heard Lai’s case are excellent lawyers. Esther Toh Lye-ping, who presided, is an experienced and independent-minded criminal judge. So what explains the palpable judicial hostility to defendants in politically sensitive trials and the paranoia which equates political dissent with treason and subversion? To answer that question, it is necessary to understand the oppressive atmosphere which has prevailed in Hong Kong since 2020. It isn’t just the jailing of dissenters. Libraries have been purged. School syllabuses have been modified. Rights advocates have been aggressively interrogated by the police. Trade Unions and political organisations have been forced to close their doors. Broadcasters have been edited or jammed. The rare acquittals or grants of bail in politically sensitive cases have been followed by bellows of rage from pro-Beijing legislators and editorial writers. “Patriotism” according to China’s definition has been required of every public servant, including judges.
Hong Kong is a special administrative region of China with its own legal system based on English law, but no longer on English legal values. China is an enormous presence. Politically, it holds all the cards. Legally, it can and does redefine the meaning of the Basic Law or the national security law through “interpretations” from Beijing’s standing committee. Of course, the rule of law applies in principle, as Hong Kong government representatives never cease to tell us. But it does not apply to issues on which the Chinese government has a political agenda. The unity of the Chinese world matters too much to Beijing for that to be allowed.
On one of my last visits to Hong Kong, I discussed these matters over a meal with a senior judge of the Court of Appeal whose wisdom I have always respected. We cannot conduct a guerilla war against the Chinese state, he said. We are part of China. It is the dominant regional power. Our roots are in China and Hong Kong. We don’t have an exit route as you do. We are pressed by the West to uphold Western values as if we were a democracy, but what can the West offer Hong Kong except moral lectures and second passports? It is a good question.
Until June 2024, Jonathan Sumption was a Non-Permanent Judge of the Court of Final Appeal of Hong Kong.
[Further reading: Chinese agents are hunting dissidents across Britain]
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