Jimmy Lai, founder of Next Digital, is charged with “conspiring to collude with foreign forces” among other charges. The trial, which is now on its 107th day, continues on Wednesday (11th) at the West Kowloon Magistrates’ Courts (acting as the High Court). Lai, making his 15th court appearance, testified that he did not delete any emails or messages after the National Security Law was enacted because “I don’t believe I have done anything illegal.”

The defense mentioned that in mid-July 2020, Lai’s assistant, Mark Simon, sent him a message on Signal about a letter organized by the former U.S. Consul General in Hong Kong and Macau, James Cunningham, aimed at urging both the Trump and Biden camps to adopt a tough stance; Lai responded with “Good to hear.” Lai denied in court any intention of encouraging Cunningham to take certain actions, noting that he was not aware of the details at the time.

The case is presided over by judges assigned under the National Security Law, Esther Toh Lye-ping, Susana Maria D’Almada Remedios, and Alex Lee Wan-tang. The prosecution team includes Deputy Director of Public Prosecutions Anthony Chau Tin-hang, Assistant Director of Public Prosecutions Ivan Cheung Cheuk-kan, and Senior Public Prosecutor Crystal Chan Wing-sum. Lai is represented by senior barrister Robert Pang Yiu-hung, barrister Steven Kwan, and New Zealand barrister Marc Corlett, who is qualified to practice in Hong Kong.

15:39 Break

15:10 Judge: “Do you think the National Security Law infringes on the right to protest?” Lai: “That’s already happening.”

The defense showed Lai’s column article published on July 19, 2020, titled “Time is a Weapon,” which mentioned, “Marching in the streets is our constitutional right, but under today’s tyranny of the National Security Law, which overrides the law, it’s unlikely we will ever again get a letter of no objection from the police for marches and protests. No longer will we see the spectacle of hundreds of thousands or even millions of people marching, shocking those in power and drawing the world’s attention.”

The defense asked if Lai meant that the National Security Law infringes on human rights, such as the right to march and assemble. Lai agreed. The defense asked why. Lai said, “Because that’s what was going to happen.” The defense noted that the National Security Law’s text mentions safeguarding human rights. Lai acknowledged this, but he did not believe it because the National Security Law overrides the Basic Law.

Judge Esther Toh Lye-ping noted that Lai read the National Security Law’s provisions and believes that marches and assemblies would no longer be a right. Lai agreed, saying he did not believe marching and assembling could remain a right, nor was it possible. Toh asked if Lai’s article, stating that no one would protest anymore, assumed that the National Security Law infringed on the right to protest. Lai agreed that no one would go out to protest anymore.

The defense pointed out that on July 1, 2020, Apple Daily’s front page showed people being arrested in the streets. Lai said very few people protested that day. Judge Toh questioned if Lai generalized that the National Security Law infringed on the right to protest because so few people demonstrated that day. Lai responded, “I believe it’s the end of protests. Under the threat of the National Security Law, it’s impossible. No one would do it anymore. It’s already happened,” reiterating that he did not believe the National Security Law safeguarded human rights.

15:00 Colleagues Ask About Reporting Under the National Security Law, Lai Says Specific Solutions Are Difficult

Chan Pui-man posted the following key points from the “Lunchbox Meeting” on Slack that same day:

Special design for the 721 issue.

• Be careful with word choice; the red lines of the National Security Law are vague. Act according to one’s conscience and journalistic principles.
• Engage more overseas authors.
• No need to be overly afraid, but be cautious.
• In addition to legal seminars for different staff positions, find colleagues with experience dealing with national security issues to share their insights.
• Assist in destroying confidential journalistic materials with ICT support.

The defense asked if “Be careful with word choice; the red lines of the National Security Law are vague. Act according to one’s conscience and journalistic principles” was not an actionable point? Lai said these discussions are difficult to resolve, as seen from the meeting records, “There was not really a concrete resolution for what was discussed.”

The defense asked, so Lai was unable to provide specific guidance or directions to the staff? Lai agreed. The defense inquired what “journalistic principles” mentioned in the meeting records referred to? Lai explained it as the way reporters are supposed to report, adding, “We could not really resolve the issue.”

The defense noted that Cheung Kim-hung and Chan Pui-man drafted the Apple Daily editorial charter, asking if the “journalistic principles” referred to this charter? Lai confirmed, but some principles could not be implemented due to the National Security Law.

Regarding the meeting record’s “Do not be overly afraid, but be cautious,” Lai said this wasn’t an actionable suggestion but just part of the discussion, advising staff to be cautious. The defense asked, cautious in what context? Lai said it referred to the descriptions used in reporting.

Regarding the meeting record’s “In addition to legal seminars for different staff positions, find colleagues with experience dealing with national security issues to share their insights,” the defense asked who these colleagues with experience were? Lai did not remember. The defense questioned if the national security had any contact with Apple Daily staff at the time? Lai did not know.

Concerning a finance team colleague’s question on Slack about “what techniques colleagues should use in response (to national security),” Chan Pui-man replied with a “Simple Guide: How to Handle Being Invited for Tea by National Security,” to which Lai responded, “We’ll discuss it.” Lai clarified in court that being “invited for tea” by national security meant being invited for an interview by the national security.

14:45 Work Platform Messages Show Employee Concerns on Reporting Post-National Security Law

The defense presented records from Apple Daily’s Slack on July 17, 2020, related to the “Lunchbox Meeting,” where staff expressed various opinions.

Yeung Ching-kee: “With the minefields and red lines of the National Security Law, local authors have many reservations, whereas overseas authors have none. Will the newspaper continue to allow authors to freely criticize CCP leaders as before?”

Lai replied, “Good, we’ll discuss it then.”

Finance team colleague: “Post-National Security Law, colleagues want clear guidelines on language and perspective in reports, such as whether ‘Wuhan pneumonia’ is still acceptable, and if power struggles within mainland China and water appropriation can still be written about? The legal seminar arranged by the company yesterday was practical, but we want more advisory seminars or training to teach us how to handle various scenarios, such as discussing national security or politics with colleagues, finding out about the company’s situation, or how to respond skillfully if directly arrested.”

Cross-Strait team colleague: “Everyone is particularly concerned about the impact of the National Security Law. The Cross-Strait colleagues want to know if events like the Wukan village rights defense will still be covered by sending reporters. The newspaper once headlined calling the then Shanwei secretary Zheng Yanxiong (now head of the National Security Agency) a ‘dog official.’ Can we still use such headlines?”

Lai replied, “We’ll discuss it then.”

Another employee: “I hope the company arranges more legal seminars to avoid colleagues inadvertently stepping over the red lines of the National Security Law and to prevent excessive self-censorship.”

Lai replied, “There have been seminars, and there will be more in the future.”

Court team colleague: “After the implementation of the National Security Law, many colleagues are concerned about what topics and terms can or cannot be reported. But the current red lines are not set by us, nor even by the Hong Kong government; no one can say what the correct standards are…”

Regarding the Cross-Strait team colleague’s mention of legal seminars, the defense noted that Lai had previously stated he attended seminars before the implementation of the National Security Law, but not after? Lai agreed, noting that the post-law seminars related to editing and reporting, which he did not attend. Regarding Lai’s reply “there will be more,” he explained that Cheung Kim-hung arranged the legal seminars.

The defense humorously noted that the court team colleague sent a message at 12:37 AM, “very diligent,” but Lai didn’t respond? Lai mentioned he was already asleep at that time.

14:34 Lai States on Twitter He Only Mentioned Already Enacted Sanctions, Did Not Encourage Sanctions

The defense displayed a WhatsApp conversation from July 17, 2020, between Lai and Simon Lee, in which Lai said, “Look like this is just the beginning of a series of sanctions the US is to enact against CCP officials. Making officials who take people’s freedom away personally accountable is righteous and effective deterrent measures.”

The defense asked if Lai intended to request US sanctions. Lai denied this, stating he was merely pointing out facts about sanctions that had already been implemented. When the defense mentioned that Lai described the sanctions as “righteous and effective deterrent measures,” asking if this was an encouragement of sanctions, Lai reiterated that he was only recognizing the justice and effectiveness of the already implemented sanctions, thus he was not encouraging them.

The defense also showed a tweet from the same day by Lai: “It looks like the series of sanctions enacted against CCP officials have just begun.”

The defense pointed out that Lai also told Lee, “That’s right. Why we resist the CCP is the voices from our conscience where our moral imperatives remain,” a statement that did not appear on Twitter. Lai said he did not know why that was the case.

12:53 Lunch

12:18 Lai Clarifies Comment on “Crossing the Line” in Program, Saying He Meant “Shouldn’t Cross the Line”

The defense questioned Lai regarding the second episode of Live Chat With Jimmy Lai, aired on July 17, 2020. In the program, Lai said, “Well, there will be disaster for Hong Kong. You know, I think Hong Kong would be finished… Hong Kong is going to be finished anyway.”

The defense asked whether Lai meant Hong Kong was already finished or was in the process of being finished. Lai responded that his expectations and thoughts varied depending on the context. Referring to his comment on Signal to Mark Simon, “HK is finished anyway,” Lai clarified that this was a spontaneous reaction and thinking indicating Hong Kong was already finished.

When pressed on the difference between his comments in the program and on Signal, Lai explained that while he told Simon that Hong Kong was “finished,” in the program he meant that Hong Kong was in the process of being finished. Regarding Hong Kong’s special status, Lai noted that it had become irrelevant as Hong Kong was in decline.

The court reviewed the program transcript, where the host asked how Lai would protect employees and ensure the company’s survival. Lai replied that employees should work with social responsibility, act cautiously, and share the same values. He also stated, “We should cross the line. But when I say we should cross the line, it’s very contradictory because the National Security Law has no red line. You know, it’s just general and vague.”

Judge Esther Toh questioned Lai about his statement, “We should cross the line.” Lai clarified that he had meant to say “shouldn’t cross the line” and argued that his subsequent comment about the National Security Law lacking clear boundaries supported this interpretation. The defense played the program recording, confirming Lai said “should cross the line.” Lai reiterated that he intended to say “shouldn’t cross the line” because the lack of clear boundaries made the statement contradictory.

The defense then asked if advocating for sanctions, hostility, or blockades was legal or illegal. Lai firmly stated, “Definitely illegal. That’s why I was very sensitive to this word.” When asked why he claimed the National Security Law had no red lines, Lai emphasized that the law was so vague and broad that various behaviors could be deemed criminal.

Regarding his statement in the program that “Hong Kong people should change tactics, be flexible, change their strategy and attitude with skill,” Lai clarified, “What I mean was we have to act in accord with the dictate of the law, but I really have no idea how we could be flexible.” 

He denied any intent to conceal anything, saying the flexibility referred to adapting to the challenging environment.

The defense also presented Lai’s July 17, 2020, Twitter post: “#HongKong#SafeharbourAct and #PeopleFreedomandChoiceAct are good wherewithal to our resistance movement. Salute all former CGs and State Dept staff for caring about this place we call home.” Lai claimed the post was written by Simon Lee because he was unfamiliar with the mentioned acts.

The defense cited a conversation between Lai and Simon Lee on the same day, where Lai sent a message stating: “This move is good wherewithal to our resistance movement. Thank you former consul generals! Former US top envoys call for Washington to grant HongKongers political asylum,” accompanied by a link.

The defense asked whether U.S. State Department personnel were involved in the call for political asylum for Hong Kongers. Lai replied that he did not know and assumed Simon Lee would have verified the information.

12:11 Lai Confirmed Plans to Enhance English Edition with Big Data, but it Never Materialized

The defense asked if Lai had tasked Fung Wai-kwong with handling AI and big data in their group chat. Lai indicated that it was possible, as Fung was not familiar with AI and big data, and was asked to research more. When pressed on the final outcome, Lai said the plan was to use it in the English edition. Asked why in the English edition and not the Chinese one, Lai mentioned wanting to add more content and provide more objective facts to foreign readers.

Citing Lai’s earlier statements, the defense highlighted that the establishment of Apple Daily’s English version aimed to break the monopoly of the South China Morning Post. Lai stated that his target audience was the international community, primarily the United States, but the plan never came to fruition by the time Apple Daily ceased operations.

11:20 Lai Discusses Using Big Data for Objective Reporting on China

The defense displayed a conversation in the Index group chat between Lai, Cheung Kim-hung, and Fung Wai-kwong (Lo Fung), discussing the use of “Big Data.” Lai added in court that, regarding China, using big data could reveal the most popular figures at the time, allowing them to understand the truth. The conclusions drawn from big data could be used in the English version of Apple Daily to achieve the most objective reporting on China.

11:10 Lai Clarifies Twitter Mention of US-China Decoupling: Raising Questions, Not Advocating

The defense noted that Mary Kissel wanted to know Lai’s thoughts, or was it Lai expressing his stance on the US severing ties with Hong Kong? Lai responded that he did not express his thoughts to her; he believed she might have read his views in the media and asked him out of confusion. Lai also mentioned that he had no contact with Mark Kissel and did not provide any advice to Mary. When responding to questions on Signal, he was merely replying to Mark Simon. Lai added that he had no direct contact with Mary, as she worked in the US government in a sensitive position, and as a friend, he should respect her situation.

The defense showed a conversation between Lai and Simon Lee, where Lai sent a link and message: “With the national security law implemented, HK is finished anyway, is this revocation of HK’s special status meant to close the window of China to the outside world’s finance, technology, and commerce when US and China decoupled?”

The corresponding Twitter post was also displayed: “While #HK is dead with #NationalSecurityLaw, does the revocation of HK special status also close China’s window to the finance, technology, and commerce of the outside world? Are US and China decoupling?”

The defense highlighted that Lai’s WhatsApp and Twitter conversations both utilized a questioning format. Lai explained that he likely responded in a questioning format in his Signal conversation with Mark Simon as he was only speculating, and the Twitter format was also speculative. The defense asked if Lai was advocating for a US-China decoupling or the closure of China’s window to the world through his post. Lai clarified that he was only raising the question of whether there was a decoupling between the US and China, proposing a query rather than advocating any action.

10:50 Lai’s Message Suggests US Revoking Hong Kong’s Special Status Could Compel China to Comply

During the defense’s presentation, a Signal conversation from July 15, 2020, between Lai and Mark Simon was shown. Mark relayed a question from Mary, asking if it was true that “Jimmy doesn’t want the US to break all ties with Hong Kong?” In response, Mark noted confusion due to some press reports, querying if Lai preferred the US not to sever all ties with Hong Kong.

Lai replied, “I said that it’s not necessary to revoke the special status of HK because with the national security law, HK is finished anyway. The point is not HK but China. Sanction China to stop it from clamping down on HK. But after I thought about it, I think they’re right to revoke HK’s special status because once US and China decoupled, HK would be a way out for China. Closing this outlet of China would force it to come to terms easier with the demands of the US.” Mark acknowledged with, “Thanks…will relay.”

Lai identified Mary as Mary Kissel, an assistant to then Secretary of State Mike Pompeo. The defense also referenced Lai’s email exchange with retired US General Jack Keane from May 2020, where Lai initially opposed revoking Hong Kong’s special status. However, in the message, Lai mentioned, “But after I thought about it, they are right to cancel Hong Kong’s special status.” When asked why he changed his stance, Lai explained that disconnecting Hong Kong from US-China interactions makes it easier for China to adjust its approach.

Judge Alex Lee Wan-tang inquired if Lai understood that Mark Simon would convey his thoughts to Mary; Lai affirmed. The defense further asked if Lai intended through Mark Simon to encourage the US government to revoke Hong Kong’s special status. Lai denied, emphasizing that he was merely explaining the consequences and reasons when asked his opinion. Regarding the message about “closing this outlet of China,” which would make it easier for China to comply with US demands, the defense queried if Lai was encouraging the US to revoke Hong Kong’s status to compel China. Lai denied, reaffirming that he was only trying to understand the US actions as he had previously disagreed with them, which was his deduction aimed at explaining to Mark Simon his reasoning.

Judge Esther Toh Lye-ping commented that according to the message content, it wasn’t merely a deduction but rather Lai’s thought? Lai clarified he was hypothesizing the reasoning behind the US actions, “I was just guessing, speculating the kind of thought they have.” The defense noted that the US had not yet announced its executive order at that time; Lai confirmed.

10:40 Lai to Simon Lee: Advocating Sanctions Too Risky, Could Be Seen as Collusion

During a WhatsApp conversation on July 15, Simon Lee sent Lai a link from Nikkei, stating, “The Liaison Office should have a bank account in HK. Sanction may begin with banks dealing with the Liaison Office.” Lai responded, “advocating sanction may be too dangerous as they treat it as subversion or collusion. maybe we can use other comments.”

The defense asked if Lai described “advocating sanctions” as “dangerous” rather than “illegal”? Lai stated that such advocacy is more than illegal. When asked who he meant by “they,” Lai referred to the National Security Law. The defense further inquired if Lai was already aware of the implications of the National Security Law regarding sanctions on that day or before. Lai noted that he had become very sensitive to the law’s implications after its enactment.

The defense queried if there was a lack of Twitter posts related to the Nikkei link? Lai mentioned that if no relevant records are found, it might be that Lee had given up on that approach.

10:30 Lai: Did Not Delete Emails or Messages After National Security Law, “Didn’t Think I Did Anything Illegal”

The defense pointed out that on July 15, 2020, Lai sent a “shit list” related to sanctions to Chan Pui-man, Ryan Law Wai-kwong, Wu Chi-wai, Lam Cheuk-ting, Albert Ho, Lee Wing-tat, and Lee Cheuk-yan. The defense noted that on July 1, Lai also mentioned the harshness of the National Security Law to everyone except Wu Chi-wai and Lam Cheuk-ting, but two weeks later, he sent the “shit list” to Wu and Lam. Lai explained that he remembered these two individuals later.

The defense asked if Lai had copied the message from Signal before sending it to them. Lai stated he did not remember, suggesting it might have been done by his secretary or that he learned how to do it later. He also did not recall where he had received the “shit list” from.

The defense inquired if Lai had deleted any emails after the National Security Law was enacted. Lai responded that he had not deleted any emails. When asked if he had deleted any emails, Signal, or WhatsApp messages after the law, Lai answered no, “Because I was not aware that I had done anything illegal.”

The defense also asked about Whiton, a senior advisor at the U.S. State Department. Lai mentioned that Whiton was no longer working at the White House or as a lobbyist and could not recall having communicated with him via WhatsApp or Signal.

10:18 Twitter Post Calls for “Resisting CCP’s Suppression of Freedom” – Lai: Didn’t Ask Simon Lee for Clarification

The defense displayed a Twitter post from July 15, 2020, by Lai, which read, “@SecPompeo and @USAHKMacau thank you for your support to #HKers. It is more important than ever for the world to voice out and to take actions to defend against suppression of freedom by the #CCP.” Lai indicated that this post was likely authored by Simon Lee. The defense compared this with a WhatsApp message Lai sent to Lee, noting some differences, where Lai had written, “We surely need help from the US government as much as possible. Thank you Secretary Pompeo.”

When asked by the defense what “help” referred to in the message, Lai said it meant any help. Upon further questioning, Lai clarified that he meant Lee had edited and added some sentences to the post. The defense inquired about Lai’s understanding of the phrase “resisting CCP’s suppression of freedom” in the tweet. Lai noted that he hadn’t asked Lee about it at the time but now believes it refers to speaking out, engaging with the Chinese people, and even censuring them. Asked how one censures, Lai responded that it involves reproaching.

The defense further questioned how one country can censure another. Lai explained that it could be through criticism or questioning their actions. Asked if the criticism meant being “hostile” to other countries, Lai said he had not thought of it that way at the time. When asked what “talking to Chinese people” meant, Lai said it involved “reasoning with them.” Asked how one reasons, Lai explained, “I wouldn’t have thought it’s such details. I think all these things that we all assume that the US government they know what to do, is not our own portion to figure it out.”

10:05 James Cunningham Mentioned U.S. Former Consul General Writing to Trump Urging Firm Action

Defense barrister Steven Kwan mentioned that Senior Counsel Robert Pang Yiu-hung was sick, New Zealand Queen’s Counsel Marc Corlett was returning to Hong Kong, and barrister Ernie Tung was handling other cases and could not attend court.

The defense displayed a message from July 14, 2020, between Lai and his “apprentice” Simon Lee, where Lai sent Lee three Apple Daily links, stating, “Sorry, I don’t know how to forward to Signal yet.” Lee replied, “I think it is okay to keep using WhatsApp.”

The defense asked if Lai had used Signal to communicate with Lee? Lai agreed, adding that since he didn’t know how to forward messages on Signal, he had to copy them there and paste them in WhatsApp.

On the same day, Lai’s assistant, Mark Simon, sent a message on Signal to Lai, “Just FYI, Jim Cunningham organized a letter from the past US consul general’s on Hong Kong meant to press both Trump and Biden people to be tough”; Lai replied, “Good to hear.”

The defense asked about Lai’s response, “Good to hear.” Lai explained that he was just responding to Mark Simon, asking rhetorically, “What else should I do?” The defense then inquired if Lai intended through Mark to encourage former U.S. Consul General in Hong Kong and Macau James Cunningham to take some action? Lai denied, stating he was also unaware of the details at the time.

10:03 Court Session Begins

The Witness