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Day 3: December 22, 2023

The Witness: Jimmy Lai Trial Day 3 | High Court: prosecution did not exceed time limit

Next Media founder Jimmy Lai and three companies related to Apple Daily were charged with “conspiracy to collude with foreign forces” and other crimes. The prosecution and defense had earlier disputed the time limit for the prosecution of “conspiracy to publish seditious publications”. After listening to the submissions of both sides, three judges ruled on Friday (22nd) at the West Kowloon Magistrates’ Courts (Interim High Court) that the prosecution had not exceeded the prosecution time bar, and the case was adjourned to January 2 next year. Both sides are expected to give opening statements the day of.

The judges ruled that the prosecution for the crime of sedition had “begun” when the prosecution wrote to the court expressing its intention to increase charges. The court received the prosecution’s letter on December 14, 2021, along with the Secretary for Justice approval to prosecute, prior to the date when the time limit expires, which is December 24, 2021.

The court also ruled that because the subversion charge in this case was a conspiracy charge and a continuing offense, the time limit must only start running from the last date of the alleged conspiracy, that is, June 24, 2021. In summary, the court held that the prosecution was not time-barred and that the court had jurisdiction to try the crime of sedition.

Jimmy Lai walked into the defendant’s dock on Friday wearing a dark blue suit jacket, a light green sweatshirt and a white shirt. He was in good spirits, smiling and nodding in the direction of his relatives and friends.

The case was heard by designated national security law judges Esther Toh, S. D’ Almada Remedios and Alex Lee. The prosecution was represented by Deputy Director of Public Prosecutions Anthony Chau Tin-hang and Assistant Director of Public Prosecutions Ivan Cheung Cheuk-kan; Jimmy Lai was represented by Mr Robert Pang SC, Mr Steven Kwan, and Mr Marc Corlett, KC.

Lai’s legal team earlier argued that lawmakers set the time limit for prosecution to uphold public interests. If this case involves seditious publications, the prosecution should bring charges as soon as possible to prevent the relevant publications from continuing to spread for the sake of the public interest. They reiterated that the prosecution cannot wait indefinitely and then bring a series of “conspiracy” charges at the end.

The prosecution on the other hand, argued that the criminal behavior in this case lasted for more than two years, and the defendant continued to publish articles for the public, involving more than 160 seditious publications, which was a “continuing offense” and did not end until June 24, 2021. On December 13 of the same year, the prosecution wrote to the court expressing its intention to add charges, which can be regarded as “starting” the prosecution, so the prosecution time limit has not been exceeded.

The Witness

Ming Pao: Court rejects Lai’s bid to drop sedition charge

Next Media founder Jimmy Lai disputed that prosecutors had exceeded the six-month prosecution time limit for the added charge of “conspiracy to publish seditious publications” and launched a two-day debate with the prosecution; the three judges designated by the National Security Law, Esther Toh, S. D’ Almada Remedios and Alex Lee unanimously ruled today (22nd) that the prosecution time limit starts from the date when “Apple Daily” ceased publication on June 24, 2021, and ends on December 24 of the same year. On December 14, the court received a statement from the prosecution that it would add the sedition charge. The prosecution had already begun when he was charged with sedition, so the prosecution didn’t pass the time limit.

Jimmy Lai was escorted to the court in a prison car this morning. Li’s wife, aunt, and two children appeared in the court. Lai was wearing a gray suit jacket and a green sweater. He smiled and gave a thumbs up, and seemed to be in good spirits. After the defendant and his legal team read the verdict, Jimmy Lai re-entered the court and pointed at the family members and waved. He was stopped by correctional officers, and he argued with them briefly.

As for when the prosecution time limit should start, the judge did not accept the defense’s claim that it should start from April 1, 2019, the first day Lai was charged. The verdict emphasized that the gist of the charge was the act of conspiracy, not the process of implementing the conspiracy. As long as the agreement was established, the “conspiracy” had occurred, therefore constituting a continuing criminal act. Based on the continuing nature of the charge, there is no reason in logic and principle to narrowly define the “crime” in the provision as a “first offense”. The judges stated in the judgment that they “can see no unfairness or injustice” if the time only starts to run from the last, so long as there is sufficient evidence to support the prosecution’s case that there was one single conspiratorial agreement covering the whole of the charge period, in which case is still subject to a time limitation of 6 months.

As long as the prosecution can prove that there is only one conspiracy agreement, the time limit will be calculated from the day . There must be injustice”, and the six-month prosecution time limit for incitement still applies.

As for when to “start” the prosecution, the judge believed that the court received a letter from the prosecution on December 14, 2021, which had satisfied the requirements in the Magistrates Ordinance to provide information to the court to complain or report crimes, and then issued a summon. It is the court’s job to summon the defendant to court, so the prosecution has already begun on December 14. The verdict included the defendant’s contention that the prosecution can only begin when a defendant appears in or is brought to court to answer the charge would lead to “surprising results.” The judges said they are not convinced that the original intention of the legislation is to say, rhetorically that, if the defendant is unable to go to court because he is in hospital, or is outside the jurisdiction, or has absconded, and is only brought to court after the prosecution time limit, he cannot be prosecuted.

The case has been adjourned to January 2 next year, when Lai will formally respond to the charges and the prosecution will begin its opening arguments.

Ming Pao

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