Hong Kong’s Independent Judiciary Hangs by a Thread

Jimmy Lai case demonstrates rot at the heart of the system

John Berthelsen

Dec 13

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Media mogul Jimmy Lai. Photo credit: SCMP

The legal ordeal at the hands of Chinese authorities of Hong Kong democracy icon and publisher Jimmy Lai shows no signs of letting up, with one trial having concluded on December 9 with a sentence of five years and nine months, and with another far more serious one aimed at putting him away for life, postponed from today to September 25, 2023.

The legal harrying of Lai and dozens of other lawmakers and prominent protesters has damaged Hong Kong’s reputation for a fair and unbiased legal system as human rights lawyers including Michael Vidler, John Harris, and Robert Tibbo have left the city in frustration or fear of intimidation.

Lai’s sentencing, on a commercial lease violation, puts the legal system into a new realm in which businessmen who cross the government are newly vulnerable and raises questions as to how long the territory can claim to be a global financial center when its core legal system rots. The most important element that has separated Hong Kong from China and made it the home of thousands of multinational corporations and financial institutions has been its philosophy of hewing to the rule of law. That is now in danger.

Lai was convicted of breaching land lease terms in the “deliberate concealment” of a consultancy firm at the offices of his now-defunct Apple Daily newspaper and ordered to pay a HK$2 million (US$256,850) fine. Wong Wai-keung, 61, a chief administrative officer at the paper’s parent company Next Digital, was jailed for 21 months.

Normally breach of lease conditions is a relatively minor civil matter. Untold numbers of industrial buildings in Hong Kong, like the Apple Daily headquarters, are partly used for residential purposes and never prosecuted, let alone for fraud.

In fact, gross breaches of building regulations by leading persons are largely ignored. Henry Tang, then chief secretary and candidate for chief executive, illegally created 2,000 square feet of basement space worth many millions of dollars. His wife was fined HK$110,000. Previous Justice Secretary Teresa Cheng and her husband were found to have several large illegal structures at their adjoining houses but she was also never prosecuted. The Lai judgment shows not only the abuse of the system by the judiciary but how judges are losing their sense of fairmindedness except doing what they are told. Meanwhile, no lawyer in Hong Kong dare say in public what they say in private about what is happening.

Hong Kong Chief Justice Andrew Cheung in January insisted that "judicial independence in Hong Kong exists as a fact," stating that "the rule of law ensures and promotes fairness, equality, and justice."

Ignoring the widely publicized leniency shown by the government to other property owners, Judge Stanley Chan Kwong-chi, who was appointed as a special arbiter to hear national security cases, said Lai had played a significant role in deceiving the publication’s landowner under the cover of a “fairly sizeable and reputable” news outlet.

“If a media organization, representing the so-called fourth power, allowed a firm to occupy its space without authorization to carry out its businesses, was it not that such organization did so under the aegis of its reputation as the media?” said Chan in remarks quoted by the South China Morning Post. “[Lai] had acted under the aegis of the media … This was a fraudulent act which was planned, organized and spanning many years.”

The 75-year-old Lai had already been in jail since December 2020 and has already served 20 months for two other charges relating to his alleged involvement with pro-democracy demonstrations that shook Hong Kong for months over the previous decade. He now awaits the postponed trial, which is described as a landmark under the National Security Law (NSL) which Beijing imposed on Hong Kong in the middle of 2020.

Under the security law, a person who commits “an offense of a grave nature under this article shall be sentenced to life imprisonment or fixed-term imprisonment of not less than 10 years,” said a judgment by three judges in the Hong Kong Court of Appeal on November 9.

“The forthcoming criminal trial is a high-profile case attracting substantial publicity locally and abroad. It involves the resolution of legal issues of great general public importance that would impact substantially on the development of NSL jurisprudence and sedition offenses. Public perception of fairness in the trial is of vital importance to the administration of justice,” the judgment said.

Lai is only the most visible of hundreds of protesters who have cycled through the Hong Kong prison system as Beijing ordered a harsh crackdown on demands for universal suffrage and other freedoms that appear to have broken the once-freewheeling city’s spirit, with a misguided Covid-19 crackdown helping to make a mockery of its slogan as Asia’s world city.

Another 47 former opposition legislators and other democracy advocates arrested and denied bail since February 2021 are due to go on trial at some point after the Lunar New Year.

A long list of human rights and press organizations has come to Lai’s defense, including Human Rights Watch, which called his trial a travesty. The New York-based Committee to Protect Journalists said the fraud charges “show how Beijing and Hong Kong will stop at nothing to eliminate any dissenting voices.” In January, a petition by more than a dozen Christian and Catholic groups and leaders was handed to a government representative outside Hong Kong's government headquarters asking that charges against Lai be dropped. Reporters Without Borders said the “staggering severity of the sentences imposed on him shows how desperate the Chinese regime is to silence this symbolic figure of press freedom in Hong Kong.”

Despite that, there is no evidence their criticism and pleas have been heard.

China was the world’s worst jailer of journalists in 2021, according to the Committee to Protect Journalists’ (CPJ’s) 2021 prison census, the first time that journalists in Hong Kong appeared on CPJ’s census. CPJ will release its 2022 prison census on December 14.

Realistically, given the political situation in China with its unforgiving attitude toward what Beijing considers an ungrateful and rebellious city, Lai, who made a fortune with the Giordano clothing line before being forced to divest the company after insulting the late Chinese Prime Minister Li Peng, may never be freed. Chinese leader Xi Jinping, who in October won effective lifetime tenure, has little sympathy for either Lai or Hong Kong’s recalcitrant citizens. The departure of major multinationals for other Asian cities like Singapore may not matter that much to him. Hong Kong’s identity is already being subsumed into what is called “the Greater Bay Area,’ the vast conurbation that includes the industrial cities of Guangdong.