Hongkong

The case of Jimmy Lai shows: Beijing makes the rules in Hongkong

The year of the Rabbit does not look bright for Hong Kongers who care about freedom, rule of law and human rights.

One of the last dinners I had in Hong Kong before I left in late 2020 was with Jimmy Lai and other good friends. It was Shanghainese hairy crab season – an annual ritual for us. Around the dinner table was the former Chief Secretary of Hong Kong Anson Chan, and the father of Hong Kong Democracy, Martin Lee. During the dinner, Jimmy was fully expecting the authorities to come arrest him and send him to jail under the draconian National Security Law. A billionaire media mogul who created “Apple Daily”, someone who could freely choose to live anywhere in the world. But he chose to stay in Hong Kong until the last minute. He is a devout Catholic. He firmly believes that God has put him in this position to be the ‘salt and light’.

Jimmy Lai was arrested by the national security authorities shortly thereafter. Due to the harsh bail conditions under the national security law, which has been endorsed by the Hong Kong Court of Final Appeal, bail was denied to Jimmy and many other political prisoners currently awaiting trial. Jimmy has been charged with the offense of foreign collusion which could lead to life imprisonment.

The trial for the charges under the national security law was due to commence earlier this month. However, Jimmy’s choice of legal representation caused Beijing and all the politicians in Hong Kong to overreact once more. Jimmy wanted a top British criminal barrister, Tim Owen KC, to represent him at trial. The Hong Kong Department of Justice and the Hong Kong Bar Association objected. The Hong Kong trial court ultimately agreed with Jimmy that Owen’s representation would be necessary and in line with public policy. The Department of Justice refused to accept this ruling and appealed against this ruling. It was shot down by the Court of Appeal, and later by the Court of Final Appeal. Lawyers for the Department of Justice argued that having a British (or foreign) barrister to represent Jimmy in a trial over charges of foreign collusion would compromise national security. And there is no way to ensure this foreign barrister could be punished by Hong Kong national security authorities if he breaches any confidentiality over state secrets. The Court of Final Appeal rightly pointed out that not only there are no ‘state secrets’ involved in this case, these points were never raised by the Department of Justice earlier on in the legal process.

The Department of Justice and the Chief Executive were unhappy with this result. It is politically unacceptable in today’s Hong Kong. So they then decided to seek an interpretation from the National People’s Congress in Beijing to overturn the Hong Kong court’s ruling. The National People’s Congress issued a ruling in December which states that the National Security Committee of Hong Kong has the full legal power to decide anything that related to national security. Its decision must in turn by followed by the government, the courts, the legislature and any other organisations in Hong Kong. This includes whether foreign lawyers can come to Hong Kong to participate in national security cases. The ability for Jimmy Lai to freely choose his own legal representation is now looking as fragile as ever. The decision made by the Committee is not transparent, and it is not subject to judicial scrutiny. It creates an overarching all-powerful Committee which could dictate on all Hong Kong affairs ranging from politics, judicial to finance and economic issues. National security is a broad concept.

Meanwhile the main political and legal development to look out for is that there will be more national security laws coming as recently announced by John Lee the Hong Kong Chief Executive. Why do we need more laws when they already have the National Security Law? According to the Hong Kong authorities, more national security laws are needed to ‘plug the loop holes’ to ban fake news, foreign organisations interfering with Hong Kong affairs, and foreign espionage activities which are hard to see on the surface but rampant underneath. These new laws will be passed later this year in 2023. There will be almost no push back from the legislature which is now full of pro-Beijing appointees, and any public criticisms of the laws will be silenced or even prosecuted for sedition.

In the year of the Rabbit, more and more Hong Kongers are predicted to leave the City for Britain, Canada, Australia and the United States. A lot of finance professionals and businesses have already relocated to Singapore. The advantage of Singapore over Hong Kong is all too clear these days. Although it is only semi-democratic, Singapore’s government does not have to pander to a central government sitting 5,000 miles away who is obsess with national security – the hallmark of a ultra authoritarian state which is China today.

*Dennis Kwok ist Senior Fellow an der Harvard Kennedy School undPartner bei Elliott, Kwok, Levine & Jaroslaw LLP (in New York). Er ist außerdem ehemaliges Mitglied des Legislativrats von Hongkong (2012 bis 2020).