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July 24, 2024

The Witness: Day 91 of Jimmy Lai’s Trial | Defense Argues No Illegal Agreement Post-National Security Law Enactment, Seeks Dismissal of the Case

Jimmy Lai, founder of Next Digital, along with three related companies of Apple Daily, are charged with “conspiracy to collude with foreign forces” among other offenses. The prosecution had previously completed presenting their evidence, and on Wednesday (24th), the 91st day of the trial began at the West Kowloon Magistrates’ Courts (acting as the High Court), where mid-trial submissions were made by both sides. On Thursday (25th), the judge will determine whether the prima facie case is established, deciding whether the defense needs to respond.

The defense argues that press and speech freedoms are protected under the Basic Law, allowing the media to monitor or criticize the government as the “fourth estate,” and that correcting the government’s errors falls under exemptions in the sedition laws. They also contend that the prosecution has only proven Lai’s intent before the National Security Law (NSL) was enacted and failed to present evidence of his intent after the NSL came into effect, arguing that the NSL transformed what was once legal into illegal, thereby rendering the “legal agreement” automatically void.

The prosecution argues that the agreement did not automatically terminate with the enactment of the NSL. They claim that accomplice witnesses’ testimonies, Lai’s interview programs, and his column articles provide ample and direct evidence that Lai continued to partake in the agreement after the NSL was enacted.

The case is presided over by designated National Security Law judges Esther Toh Lye-ping, Susana Maria D’Almada Remedios, and Alex Lee Wan-tang of the High Court. The prosecution is represented by 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; Jimmy Lai is represented by senior barrister Robert Pang Yiu-hung, barrister Steven Kwan, and Marc Corlett, a New Zealand Queen’s Counsel practicing in Hong Kong.

Defense: Newspapers Monitor Government

Correcting Errors of the HK Government Does Not Constitute Incitement

Senior Barrister Robert Pang Yiu-hung began his arguments on the charge of “conspiracy to publish seditious publications,” highlighting the importance of freedom of speech. He noted that the accusation against Jimmy Lai using Apple Daily as a platform for conspiracy is “a very strange charge,” since Apple Daily is a newspaper. He pointed out that court witnesses have also stated that newspapers can have different views across the spectrum and, as the “fourth estate,” can monitor or criticize the government.

Pang further stated that the seditious offenses legislation provides exemptions where any act, speech, or publication aimed solely at correcting errors or faults in the government’s or constitutional arrangements, or at eliminating ill-will or hostility among different sections of Hong Kong’s population, would not constitute a crime. “These are exactly the sorts of things that newspapers do,” he argued.

Defense: Press Freedom Protected by Constitution

He stated that press freedom and freedom of speech are protected by the Basic Law and the Hong Kong Bill of Rights Ordinance, emphasizing that this is not a trump card, but when determining whether a publication involves incitement, its content and context must be considered, meaning the essence of a newspaper is to point out errors and raise public awareness.

Robert Pang Yiu-hung further mentioned that the right to fair comment is one of the most crucial elements of freedom of speech. In adjudicating cases, the courts should not adopt a narrow definition but rather a broader interpretation, allowing newspapers to fully play their role in focusing on the public interest.

Judges Questions Need for New Agreement Under New Law

In this case, the charge involves “conspiracy,” and Robert Pang highlights that the “agreement” is crucial. A “conspiracy” involves an agreement to commit illegal acts; an agreement to conduct legal activities in a legal manner is not a conspiracy. The prosecution must demonstrate an illegal intent.

Pang continued that evidence might show that before the National Security Law was enacted, Jimmy Lai and co-defendants had legally agreed to publish certain reports and collaborate with some organizations. However, the enactment of the National Security Law rendered these previously lawful actions illegal, leading to the automatic frustration of the lawful agreements.

Pang explained that the prosecution’s basis is not that Lai and the defendants formed a new agreement but that they did not withdraw the original agreement. With the enactment of the National Security Law, the agreements among the defendants were automatically frustrated, questioning, “How can I be convicted for something I never agreed to if it has changed?”

Justice Susana Maria D’Almada Remedios questioned whether, under the new law, a new agreement was necessary, and asked what constituted a “new agreement”? Pang reiterated that when the circumstances and the basis change, and the defendants agree to conduct illegal actions, that constitutes a new agreement.

Justice Alex Lee Wan-tang further questioned, noting that even if the National Security Law rendered some agreed actions illegal, it does not mean that the agreements set before were invalidated. Pang added that frustration means that the original purpose of the agreement is no longer feasible.

Defense: Apple Daily Sought Legal Advice on National Security Law

Justice Alex Lee Wan-tang emphasized that the focus of the case, after the enactment of the National Security Law (NSL), is whether Jimmy Lai intended to invite foreign sanctions against Hong Kong, not necessarily whether Lai was aware that his actions were illegal. Robert Pang responded, arguing that the prosecution needs to prove Lai still harbored relevant intentions after the NSL took effect, but currently, the prosecution can only demonstrate Lai’s intentions before the NSL’s enactment, without evidence of his intentions thereafter.

Pang highlighted that several co-defendant witnesses mentioned that Apple Daily sought legal advice after the NSL took effect, aiming to avoid illegal actions and not to “cross the red line.” This indicates that their agreement was to act lawfully, not to commit illegal acts. For instance, former Apple Daily chief editor Cheung Kim-hung had mentioned “playing close to the line,” which Pang argued shows they decided to step back and not continue with the original agreement.

Pang also used a sports analogy, suggesting that players try not to go out of bounds; “The goal isn’t to hit the ball out, but to score,” he reiterated that Apple Daily’s leadership was committed to legality. Additionally, Pang referred to Cheung Kim-hung’s testimony, who visited Lai in detention and was told by Lai to “not be afraid” and continue operating Apple Daily. Pang argued that this testimony does not imply an agreement to act unlawfully.

Defense: Mentioning sanctions does not equal requesting sanctions

Judges question claim that ‘sanctions are helpful’ as also being a request

Pang stated that Jimmy Lai launched the English version of Apple Daily and “One Hongkonger One Letter to Save Hong Kong” before the National Security Law was enacted, and there is no evidence that his interview show “Live Chat with Jimmy Lai” involved requests for sanctions. Judge Esther Toh asked if Pang meant Lai did not mention sanctions during the show. Pang clarified that mentioning sanctions does not equate to requesting them, such as discussing the UK’s implementation of Magnitsky-style sanctions.

Toh continued, suggesting that one does not need to explicitly say “I call for sanctions” to constitute a request for sanctions, asking if saying “sanctions are helpful” or “pressuring the government” could also be seen as forms of requesting sanctions? Pang responded that in the context of the show, Lai discussed the impact of sanctions globally, which is distinctly different from requesting sanctions.

He also noted that Lai only mentioned sanctions for one or two minutes in an hour-long segment, which is insufficient to infer an agreement. Lai discussed how the Biden administration should not adopt a soft policy towards China on the show. Pang described Lai’s commentary on world events as no different from casual discussions in a diner, where people might say “the government is stupid” or “the government should do this or that.”

Regarding Lai’s column “Success and Failure with a Laugh,” which discussed how the US-China trade war curbed China’s economic growth, Pang said it was merely Lai’s personal opinion.

Defense: Lai was unaware of SWHK campaign details

Prosecution: Lai knew National Security Law was impending yet still endorsed actions

Regarding the “Fight For Freedom. Stand With Hong Kong (SWHK)” segment, Pang stated that Jimmy Lai was unaware of the details of SWHK’s actions, which involved three letters sent by SWHK to the foreign ministries of the Czech Republic, Ireland, and Portugal, calling for a suspension of extradition agreements with Hong Kong, without any mention of Lai’s participation.

As for the prosecution’s claim that Apple Daily’s reporting promoted the establishment of the Inter-Parliamentary Alliance on China (IPAC), Pang noted that the reporting does not imply Lai’s agreement with IPAC’s activities.

Prosecution: Lai’s Twitter and programs are evidence

In response to the charge of “conspiring to publish seditious publications,” prosecutor Anthony Chau Tin-hang stated that freedom of speech is not absolute and it is up to the court to determine whether the content of publications is illegal. He noted that the relevant agreement had been reached before the National Security Law took effect and continued thereafter.

Regarding Pang’s claim that the original agreement was invalidated due to the National Security Law, and no new agreement was made among the defendants, the prosecution argued that automatic invalidation is a civil concept, not applicable in this conspiracy case. Moreover, as long as there is evidence that all parties continued to follow the agreement after the National Security Law, the agreement remains in effect.

Judge Esther Toh Lye-ping noted that the defense argues the prosecution has not proven that Lai committed illegal acts after the National Security Law, thus failing to prove his continued involvement in the agreement. The prosecution emphasized thait “accomplice witnesses” provided direct evidence against Lai, such as Cheung Kim-hung’s statement that after Lai was detained, he said, “Don’t worry, keep going, just like before.” Cheung and Chan Pui-man also testified that they expressed concerns to Lai about foreign guests invited on his interview programs, but Lai continued with the programs.

The prosecution further stated that Lai did not change his stance before or after the implementation of the National Security Law, and pointed out that Lai’s Twitter posts, interview programs, and columns in “Success and Failure with a Laugh” are evidence, contrary to the defense’s claim of weak evidence.

Prosecution cites ‘Hong Kong 47 case’ indicating conspiracy agreement also reached before the National Security Law

Judge Alex Lee Wan-tang referenced the defense’s argument, questioning whether the prosecution has evidence that Lai was part of the agreement, given that their evidence only refers to the actions and words of other involved parties. The prosecution reiterated that there is substantial evidence showing Lai was part of the agreement, such as his continuation of interview programs, publishing articles, and the connection of his Twitter account with SWHK, IPAC, and its founder Luke de Pulford. Chau argued that the court must consider not only Lai’s activities after the enactment of the National Security Law but also those before it to fully understand the situation.

Regarding the collusion charge involving SWHK, Chan Tsz-wah testified that during a meeting at the Next Digital building with Lai, Lai described the National Security Law as “all bark and no bite” and advised continuing efforts on the international front. Judge Alex Lee focused on the fact that this meeting between Chan and Lai occurred on June 16, 2020, before the National Security Law came into effect. The prosecution emphasized that this was their last meeting, and at that time, Lai knew about the impending law yet still encouraged continued action.

The prosecution also pointed out that in the ‘Hong Kong 47 case’, the conspiracy agreement involved—indiscriminate veto of the budget—was also reached before the National Security Law. After the law was implemented, the defendants’ objectives did not change, reaffirming that there is no evidence in this case to suggest that the agreement among the defendants would automatically become void.

Prosecution completed presenting evidence in June this year

The trial has been ongoing since December 18 of last year, during which the prosecution has called a total of 8 witnesses, including 5 “accomplice witnesses” such as former Apple Daily senior executives Cheung Kim-hung, Chan Pui-man, and Yeung Ching-kee, as well as Andy Li Yu-hin and Chan Tsz-wah, who are associated with SWHK (Fight For Freedom. Stand With Hong Kong). Additionally, the prosecution summoned the COO and then CFO of Next Digital Group, Royston Chow Tat-kuen, and a social media expert witness, Associate Professor Chow Kam-pui from the University of Hong Kong’s Department of Computer Science, to testify.

At the request of the defense, the prosecution also called national security police to testify about their meeting with Cheung Kim-hung in detention and played Lai’s interview program “Live Chat with Jimmy Lai” along with the complete interview footage, formally concluding their presentation of evidence on June 11.

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