Jimmy Lai Trial Postponed Again as HKgov Withholds British Barrister Work Visa and Awaits Beijing’s NSL Interpretation

Hong Kong media mogul and pro-democracy activist Jimmy Lai is escorted to a prison van before appearing in court in Hong Kong on Dec. 12, 2020. Kin Cheung/AP Photo

On Dec. 1, the government halted Lai’s trial for seven days, citing the need to wait for “the Beijing government” to determine whether an overseas, non-Chinese attorney would be allowed to represent cases concerning National Security Law, particularly in Lai’s case. It has now been pushed back further to Dec. 13.

The defence team later revealed that the Immigration Department had withheld the work visa application of King’s Counsel Tim Owen, Lai’s defence barrister, resulting in Owen’s absence and inability to represent Lai in court on Dec 1.

Jimmy Lai Chi-ying, the former founder of the now-defunct Next media and Apple Daily, and six of its former executives were charged with violating the Hong Kong National Security Law.

Jimmy Lai appointed British barrister Tim Owen in his defence.

After multiple appeal requests by the Department of Justice, the Court of Final Appeal ruled to allow the British King’s Counsel barrister to defend Lai.

On Nov. 28, the Court of Final Appeal rejected the Department of Justice for their yet-another appeal to stop Lai from using Owen in his defence.

Government Intervenes in the Judicial System

After The Court of Final Appeal threw out the request of the Department of Justice, the city leader spoke and questioned the court’s final verdict.

Hong Kong Chief Executive, John Lee Ka-chiu, claimed that he had received a letter from the Beijing government requesting a report on the work of the Committee for Safeguarding National Security of Hong Kong.

On Nov. 28, Lee said in a press conference that he had sent Beijing a performance report on Article 11 of the National Security Law. Lee stated that his top priority of One Country. Two Systems were to safeguard national authority and interests.

According to the Washington Post,  the Hong Kong Liaison Office and the Hong Kong and Macao Affairs Office fully supported Lee in their released statement.

The chief executive said he had submitted a report on the evening of Nov 28. Lee suggested that the top body of the Communist Party of China further explain something about the National Security Law: “Would allowing foreign or overseas, non-Chinese solicitors and barristers to participate in national security law trials contradict the law’s legislative intent and objectives to safeguard national security in any form, without full Hong Kong professional qualifications?”

Lee reiterated this during a press conference.

Trial Delayed Once More

Jimmy Lai was supposed to stand trial on Dec. 2 after the justice department tried multiple attempts to get an appeal to Lai’s lawyer.

However, prosecutors requested the court to postpone the case for seven days as they “were waiting on Beijing’s further interpretation.” They claimed there was an important development in the case.

Shortly after, on the same day, the chief executive announced that he had requested the central government to interpret the national security law further, whether allowing foreign lawyers to participate in the trial of national security law-related cases goes against the legislation’s intent.

Other pro-CCP parties expressed they fully support Lee, including the Hong Kong and Macao Affairs Office, the Central Liaison Office, and the National Security Commission.

Current affairs commentators criticized the Immigration Department for intervening in Jimmy Lai’s hiring of a British overseas barrister by withholding his work visa application.

DOJ: Respect the Regime

Public prosecution representative of the Department of Justice, Anthony Chau Tin-hang, relayed to the press his confidence in Beijing being able to offer advice on the controversial law.

Chau hoped the court “would fully respect Beijing and approve the trial postponement.” 

Immigration Department Lending the Government ‘A Helping Hand’

Pang Yiu-hung, a senior barrister representing Jimmy Lai, revealed in court that the Immigration Department had withheld the work visa application of Tim Owen, who was approved to represent Lai by the High Court and the Court of Final Appeal.

Therefore, Tim Owen missed the court hearing on Nov. 28.

Tim Owen had previously been granted admission for another case in High Court.

Pang disputed that despite all courts approving Tim Owen to act as Lai’s defense attorney separately and numerously, the Immigration Department still decided to withhold Owen’s work visa application.

Pang told the court that the Immigration Department was still withholding Owen’s application as of Nov 30. He stated only the government would know why.

Pang said he did not know whether Beijing would reinterpret the current National Security Law. He said, however, that the defendant had no other options but reluctantly did not object to the seven-day trial postponement.

The three appointed national security law judges then adjourned court until Dec. 13.

CCP Loyalists Speak to CCP Media

Multiple pro-CCP politicians and lawmakers said the court “should put National Security first” instead of “the Common Law” whenever it handled cases concerning national security.

Ma Ho-fai, a pro-CCP lawyer and member of the National People’s Congress, told the government mouthpiece Wen Wei Po, that the National Security Law uses Chinese as its main language; most evidence would be in Cantonese. Ma was “puzzled” “about how foreign lawyers could help with Chinese-language “documents and cases.”

Ma also questioned if the government could keep “national secrets” from leaking once these overseas lawyers hired for National Security Law cases had left Hong Kong.  

TC Chan Tze-chin, a pro-Beijing lawyer, and a member of the government-friendly organization for solicitors, Hong Kong Sage United, averred considerable differences between the National Security Law and the Common Law to Wen Wei Po. Therefore, when discussing or studying the appeal request by the Department of Justice, we should look closely from the perspective of National Security Law first.

Chan also said that for someone like Jimmy Lai Chi-ying, who had “ulterior motives” for hiring a foreign lawyer, “the Court should think carefully.”

Pro-government Yuen Long District Council chairperson Wilson Shum Ho-kit claimed that many local lawyers had become familiar with the human rights law since the handover. And because of that, he believed the Hong Kong government should not allow overseas, non-local solicitors to participate in NSL cases.

HKGov Sees National Security Above All

Former Central Policy Unit adviser Lew Mon-hung said in a Voice of America (VOA) interview that by withholding Tim Owen’s work visa request, the government would magnify global concern about its intention to intervene in the judicial system in Hong Kong.

Lew also warned there would be repercussions to Hong Kong’s positioning as an international financial hub.

“The core spirit of Hong Kong being an international financial center is its freedom and the rule of law. But if the government keeps intervening in judicial procedures, the international community will see One Country, Two Systems shaken and distorted.”

Lew said the Hong Kong government should handle Tim Owen’s work visa application wisely.

He also questioned if the Hong Kong National Security Law could override the Basic Law since it is a constant issue the government faces.

“The national security law has been criticized ever since its implementation. The United Nations Human Rights Council criticized the National Security Law for being vague, confusing, and unfair two months ago. Simmering down the local and international criticism should be the Hong Kong government’s top priority now.”

NGO Speaks for Freedom of Journalism

Non-government organization Reporters sans frontières, or Reporters Without Borders, RSF, urged for an immediate release of the news publisher Jimmy Lai Chi-ying in a statement released on Dec. 2.

Reporters sans frontières is a not-for-profit group that protects journalists’ rights, safety, and freedom of the press.

RSF stated that Lai had contributed to the freedom of the press and media independence for 25 years before the regime’s crackdown on Lai’s former companies. “At 75 years old, Lai has been imprisoned for almost two years for attending what the government considered to be unauthorized protests.”

The non-profit group said, “In the past two years alone, the Chinese regime used the enactment of a national security law as a pretext to prosecute at least 23 press freedom defenders in Hong Kong.”

RSF pointed out the Hong Kong government has shut down major independent media outlets, such as Apple Daily and Stand News, to silence and crack down on journalists since the National Security Law implementation in 2020.

In the 2022 RSF World Press Freedom Index, Hong Kong’s position nose-dived from 80th place to 148th in only one year. China remained in the low of 175 of the 180 spots in total.

Jimmy Lai was awarded the 2020 Reporters Without Borders Press Freedom Award. Lai was praised highly for his dedication to protecting press freedom despite continuous persecution by the regime and the Chinese Communist Party.

*This is a developing story.

Case number: HCCC51/2022