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The Case of Jimmy Lai: The Future of Hong Kong’s Judicial Independence Hang in the Balance as Landmark Trial Unfolds

Written by Gregory Wong for the Hong Kong Politics/ Legal Issues Section.



In the aftermath of the rife protests that once engulfed Hong Kong in 2019, media mogul and pro-democracy activist Jimmy Lai is currently facing trial for his transgressions against the National Security Law.[1] Recent developments state that he has pleaded not guilty to both criminal offences of colluding with foreign forces and conspiring to publish seditious materials, charges that could land him a maximum sentence of life imprisonment if convicted.[2] A prominent spearhead of the opposition that responded to the Tiananmen Square massacre and similar democratic protests, Lai’s firm criticism of the Chinese Communist Party’s involvement with Hong Kong has landed him in hot water several times, including accounts of participating in unlawful assemblies that rocked the entirety of Hong Kong society in 2020.[3] However, it is clearer than ever that the current situation further complicates the relationship between Hong Kong and mainland China on the international stage. 


Much of Hong Kong’s pro-democracy protests stem from a long-winded history of international relations. In the years leading up to the conclusion of the Treaty of Nanking, in which Hong Kong had been converted into a British colony by defeat in the Opium Wars, both Britain and China cooperated in the handover of Hong Kong through the validation of the Sino-British Joint Declaration.[4] It is said within the treaty that the sovereignty of Hong Kong would be given to China for control while aiming to uphold policies concerning the degree of autonomy, the separation of powers, the creation of the Basic Law, and the status of the Special Administrative Region.[5] Even during the early days of the handover, public dissatisfaction towards the arrangement had been vocal with protests in critique of Article 23 of the Basic Law, fearing that freedoms of speech would be violated for the sake of preventing seditious materials.[6] Pro-democracy protestors’ most recent encounter with China revolved around the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation Bill, a proposed amendment of a bill which allowed for the extradition of fugitive Hongkongers to the Mainland to await trial.[7] Already fearing the erosion of Hong Kong’s judicial system by the Communist Party’s influence, rampant protests were held to resist the passing of the bill, further provoking the creation of the National Security Law that Lai finds himself in trespass today.[8]


The heart of the issue lies within the role Hong Kong plays against the Chinese backdrop: to act as an extension of the Chinese government or to contribute to the global conversation as an independent entity? It seems that the truth lies somewhere between both sentiments. When considering the intentions of China in response to the handover, it has been clearly stated in the constitution that Hong Kong is an absolute part of China and that the capitalist system left over by British rule would be maintained for 50 years since the implementation before any Chinese socialist policies are to be considered.[9] It is clear from the beginning that China had hoped to integrate Hong Kong as a part of the country, with considerations that a transitory period would suit well to steadily usher in the modernised Chinese way of life while maintaining the financial expertise and status that Hong Kong possesses.[10] 


Even so, criticisms from both internal and external parties toward the Chinese government cannot be ignored, especially when examining its actions through the lens of global politics and legal systems. Locally, Lai’s expedition in challenging Article 23 during the early 2000s had been accomplished with the help of his own paper, the Apple Daily, one of the many contributing factors that ended up amassing half a million protestors to object against the legislation that prohibited sedition.[11] Martin Lee, a prominent local barrister who took part in the drafting of the Basic Law, has also condemned the Chinese government for its efforts in legislating in the name of Hong Kong, stating that such action would be in breach of the “one-country, two-systems” arrangement, and should only be relegated to issues that lie “outside the limits of Hong Kong’s autonomy”.[12] Meanwhile overseas, concerns have been similarly expressed by government leaders and politicians, in fear that Hong Kong’s integrity may be damaged by Chinese interference. Rishi Sunak has signified his dissatisfaction with Lai’s trial, commenting that said trial was politically motivated and did not uphold the right to freedom of speech.[13] The US further weighed in during a press statement, announcing the denouncement of Lai’s prosecution by virtue of his right to press freedom, calling on the authorities for his release.[14]


Despite currently having scarce options to mend the disrupted ties between Hong Kong and China, an explanation can at the very least be afforded to interpret the reasoning for China’s persistent push into Hong Kong soil. Mirroring Western systems of democracy, China prides itself on its authoritarian form of government, and it is precisely through this way of ruling does its economy continues to flourish.[15] Unlike liberal democracies that place individuals at the forefront, authoritarian states have the nation’s government more involved with the investment of products and services. In this case, China applies the same line of thinking to their politics, reinforced by the financial crisis of 2008 that demonstrated the ill foundations and hollowness the “Washington Consensus” contained.[16] Adopting the Marxist-Leninist system, the Chinese government not only assumes control over the ownership of assets and distributions of wealth, but it also concerns itself with maintaining control in the operations of the system itself.[17] With the rest of the world witnessing the stupendous rise of the Chinese economy and its various science industries, there is little reason to doubt why they would approach Hong Kong’s situation any differently: with resoluteness and conviction.


Regardless of any justification, the National Security Law is still up to public scrutiny, in particular, the purpose and broadness which has received backlash.[18] Ranging from the law applying its extraterritorial scope worldwide to extraditing suspects who would be subject to Chinese criminal law, calling the powers granted by the National Security Law expansive is a bit of an understatement.[19] Nevertheless, the pending outcome of Lai’s case will demonstrate the true capacity that China currently has over the law. If China continually turns the heat on Hong Kong, the former British colony may soon well return to its motherland in its entirety sooner than expected.







References

[1] Joel Guinto, ‘Jimmy Lai: Hong Kong mogul pleads not guilty to national security crimes’ BBC News (London, 2 January 2024) <https://www.bbc.co.uk/news/world-asia-china-67860502> accessed 12 January 2024

[2] ibid.

[3] HKSAR v Lai Chee Ying & Others [2021] HKDC 457

[4] Joint Declaration of the Government of the United Kingdom of Great Britain and Northern Ireland and the Government of the People’s Republic of China on the Question of Hong Kong (adopted 30 June 1985, entered into force 1 July 1997) 1399 UNTS 61 

[5] ibid.

[6] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China Article 23

[7] Fugitive Offenders Ordinance Cap 503 sec 2(1)

[8] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region

[9] The Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China Article 1, Article 5

[10] ‘Hong Kong as an International Financial Centre’ Hong Kong Monetary Authority (Hong Kong, 7 June 2023) <https://www.hkma.gov.hk/eng/key-functions/international-financial-centre/hong-kong-as-an-international-financial-centre/> accessed 15 January 2024

[11] Amy Hawkins, ‘Jimmy Lai: Hong Kong mogul, activist ... and now a prisoner for 1,000 days’ The Observer (Hong Kong, 30 September 2023) <https://www.theguardian.com/world/2023/sep/30/jimmy-lai-hong-kong-mogul-activist-and-now-a-prisoner-for-1000-days> accessed 15 January 2024

[12] ‘'I won’t allow this to be the end of Hong Kong': campaigner on his long fight for democracy’ The Observer (Hong Kong, 24 May 2020) <https://www.theguardian.com/world/2020/may/24/i-wont-allow-this-to-be-the-end-of-hong-kong-campaigner-on-his-long-fight-for-democracy> accessed 15 January 2024

[13] Danny Mok, ‘UK PM Rishi Sunak condemns Jimmy Lai’s trial as ‘politically motivated’ in letter to ex-Hong Kong governor Chris Patten’ South China Morning Post (Hong Kong, 11 January 2024) <https://www.scmp.com/news/hong-kong/law-and-crime/article/3248119/uk-pm-rishi-sunak-condemns-jimmy-lais-trial-politically-motivated-letter-ex-hong-kong-governor-chris?comment_login_success=1> accessed 15 January 2024 

[14] “Trial of Jimmy Lai Under the Hong Kong National Security Law” US Department of State, 17 December 2023, https://www.state.gov/trial-of-jimmy-lai-under-the-hong-kong-national-security-law/. Press release.

[15] Rana Mitter and Elsbeth Johnson, ‘What the West Gets Wrong About China’ Harvard Business Review (May 2021) <https://hbr.org/2021/05/what-the-west-gets-wrong-about-china?ab=seriesnav-spotlight> accessed 15 January 2024

[16] ibid.

[17] ibid.

[18] Emily Feng, ‘5 Takeaways From China's Hong Kong National Security Law’ National Public Radio (1 July 2020) <https://www.npr.org/2020/07/01/885900989/5-takeaways-from-chinas-hong-kong-national-security-law> accessed 15 January 2024

[19] ibid.

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