Hong Kong Watch and ARTICLE 19 statement: "Assault on judicial independence in Hong Kong denies justice for Jimmy Lai"

Hong Kong Watch and ARTICLE 19 condemn the ongoing legal and political harassment against Hong Kong pro-democracy activist and publisher Jimmy Lai, and call for his immediate and unconditional release. Hong Kong must pull the emergency brakes on the outrageous and unrelenting deterioration in judicial independence and the rule of law and guarantee that it will not transfer anyone to stand trial in Mainland China.

 Jimmy Lai’s trial, scheduled to resume today, has been postponed a second time, now until 25 September 2023. The decision to postpone his trial, handed down by three national security judges Esther Toh, Susanna Remedios, and Alex Lee, is the latest infringement of his due process rights, as the court awaits further instructions from Beijing.  

 The independent publisher is charged with three counts under Hong Kong’s authoritarian National Security Law (NSL), imposed by China in 2020, which carries a maximum punishment of life in prison. He has been arbitrarily denied the lawyer of his choice and authorities have even hinted that ongoing frustrations with his case may lead to Lai being transferred to Mainland China, where the risks of abuse multiply.

 “This amounts to a grave and tragic wielding of ‘lawfare’ by the Chinese Communist Party and their representatives in Hong Kong, a gross assault on Hong Kong’s system of justice and the rule of law, and a profound violation of basic human rights. We urge the international community, particularly the United Kingdom government, to speak out, to call for the release of Mr Lai – who is a British citizen, and to do everything possible to ensure his case is not transferred to mainland China, that it is monitored with vigilance, and that he is not mistreated in detention,” said Benedict Rogers Co-Founder and Chief-Executive of Hong Kong Watch.

 “Hong Kong was once respected for its freedom of expression and rule of law, but now under the National Security Law, which was imposed by Beijing over the independence of Hong Kong’s legislative body, it is increasingly indistinguishable from the Mainland. And now, with the specter of extradition hanging over the head of a British citizen and Hong Kong resident the international community should abandon any pretense of business and usual in its commercial or political dealings with Hong Kong,” said Michael Caster, ARTICLE 19’s Asia Digital Program Manager.

Lai, 75, is a longstanding pro-democracy activist and leading voice in Hong Kong’s independent media. Most notably, he was the founder and publisher of the now defunct Apple Daily, which was forcibly shuttered by the authorities in June 2021.

For his outspokenness, since 2020, Lai has been the target of ongoing judicial and political harassment. Recently, he completed his 20-month sentence for participation in pro-democracy demonstrations in 2019, only to be handed down an additional five years and nine months for separate fraud charges on 10 December.

Initially scheduled to begin on 1 December, Lai’s trial was already postponed earlier this month following a request from Hong Kong’s Chief Executive John Lee, who asked Beijing to intervene in the case. This breach of judicial independence from the executive came on the heels of a major legal victory for Lai, as Hong Kong’s high court upheld a ruling to allow him to be represented by a counsel of his choice, British human rights lawyer Timothy Owens KC.

In an earlier ruling affirming the admission of the British specialist counsel, Hong Kong’s High Court Judge Jeremy Poon had noted that “in-depth and rigorous analysis of the intricate interplay between national security and the constitutional right to the freedom of expression to ensure that a proportionate balance is drawn for safeguarding national security on the one hand and protecting the freedom of expression on the other.”

Ensuring the alignment of the law with Hong Kong’s international human rights obligations seems not to be a concern for the executive. On 28 November, Lee sought to supersede the judicial decision-making power of Hong Kong’s high court by reaching out to Mainland China’s top legislative body, the National People’s Congress Standing Committee (NPCSC), to decide whether foreign lawyers may be retained in national security cases.

In a further assault on the independence of the judiciary, on the same day that Lai’s trial was postponed awaiting intervention from Beijing, Hong Kong immigration authorities arbitrarily revoked his British lawyer’s application for an extension of his work visa. Owens subsequently left the city. 

The arbitrary revocation of Owens’ work visa and uncertainty over how Beijing will come down on the case and have left the judicial process is in limbo and Lai without a lead counsel. The situation has now prompted veiled threats that Lai could face extradition to Mainland China.

Tam Yiu-chung, Hong Kong’s representative to the NPCSC, and one of the voices who had spurred the Chief Executive to ask for Beijing’s intervention, has threatened that Hong Kong defendants who cannot secure a local lawyer should have their case transferred to Mainland courts. His declaration cannot be seen as an empty threat: it was the fear of extradition to Mainland China courts which sparked massive protests across Hong Kong in 2019.

The ongoing arbitrary interventions into Lai’s case by Mainland China and the threat of extradition looming over his head leave no room for doubt – judicial independence in Hong Kong has been eroded to its core.

Earlier this year, ARTICLE 19 and Hong Kong Watch raised the denial of access to justice and the assault on the independence of the judiciary in their joint submission to the UN Human Rights Committee. The backtracking of judicial independence has had a serious impact on the denial of fair trial rights for publishers and independent media, contributing to the widescale assault on the freedom of expression in Hong Kong. These, and other serious rights abuse trends, have largely taken place under the National Security Law.

For these reasons, in July, the UN Human Rights Committee recommended that Hong Kong ‘guarantee the rights to access to timely and competent legal aid and to counsel of one’s choice, including those charged under the National Security Law.’ The Committee also enjoined Hong Kong to ‘take concrete steps to repeal the current National Security Law and, in the meantime, refrain from applying the Law’.

Recently, a European Court of Human Rights decision effectively blocked all extraditions from Europe to China over serious concerns of torture and the denial of the right to a fair trial. While not imposing legal obligations on Hong Kong, the decision made clear that extradition to China goes against states’ international human rights commitments.

“Everyone, everywhere, who values freedom should be speaking out for Jimmy Lai,” said Rogers.