On Nov 20, the trial of the former media magnate Jimmy Lai Chee-ying will resume with the opening of the defense case. He stands accused of conspiring to collude with foreign forces and conspiring to publish seditious materials. A three-judge panel of the Court of First Instance will determine his guilt or innocence.
Lai is represented by some of the best lawyers money can buy (including Senior Counsel Robert Pang and King’s Counsel Marc Corlett). They have ably tested the prosecution evidence and are protecting their client’s interests in every respect. They know Lai can only be convicted if prosecutors prove their case beyond a reasonable doubt, which is always a heavy burden to discharge.
However, in blatant disregard of their so-called “international rules-based order”, some Western politicians have made extra-judicial attempts to secure Lai’s release. As some of those responsible are legally qualified, they know full well that what they seek is impossible.
In the United States, president-elect Donald Trump has got it into his head that a deal could be struck with China over Lai’s fate. On Oct 24, while campaigning for the presidency, he was asked by the podcaster Hugh Hewitt if Lai could be released and allowed into America. Trump replied, “Hundred percent, yes.” He said he would speak to President Xi Jinping, adding, “I’ll get him out. He’ll be easy to get out.”
Trump is ignorant of Hong Kong’s constitutional status and its high degree of autonomy. Despite his own 34 felony convictions, he is also unfamiliar with how its criminal justice system works. However, hopefully somebody will advise him that Xi has repeatedly pledged his support for the “one country, two systems” policy and made no secret of his admiration for the Hong Kong Special Administrative Region’s judicial arrangements.
Indeed, when he visited Hong Kong in 2022, Xi announced that Hong Kong’s capitalist system and way of life would endure after 2047 when the “50 years unchanged” formula envisaged by the Sino-British Joint Declaration of 1984 is due to expire.
The notion that Xi would attempt to interfere with Lai’s trial after a telephone call from Trump was not only insulting but bizarre. There is no way that Xi would be party to corrupting the legal system he has pledged to uphold. If Trump is unaware of that, he is in for a rude awakening.
Indeed, if he were foolish enough to use his position to try to influence Lai’s trial, he could even trigger the Hong Kong National Security Law’s Article 55. This provision facilitates the trying of a case in the Chinese mainland if the activities of a foreign country or external elements “make it difficult for the Region to exercise jurisdiction over the case”. Improper interference by Trump or his allies could satisfy these criteria.
It must be hoped that, at some point, the US Consul General in Hong Kong Gregory May, can drag himself away from his candle-lighting for long enough to explain the niceties of the situation to Trump (including the fact that, like Trump, Lai is a convicted felon). If so, he should also advise him that, on Nov 12, the chief executive, John Lee Ka-chiu, emphasized that, although Hong Kong was an important trading partner for the US, “there should be no interference with local, internal affairs.” This was because Hong Kong “attaches great importance to the rule of law”.
Although Trump is not legally trained, the same cannot be said of his British partners, whose conduct has been extraordinary. On Oct 17, the prime minister, Sir Keir Starmer, called on the Hong Kong authorities to “immediately” release Lai. Although this played well with the anti-China brigade in the House of Commons, it was cheap political grandstanding, unworthy of the leader of a great country. As a king’s counsel and former director of public prosecutions of England and Wales, he knew better than anybody what Lai’s situation actually was, and why what he was suggesting was not achievable.
On Dec 10, 2022, Lai was convicted of two fraud offenses in the district court. He was sentenced to five years and nine months imprisonment, and has served less than half his sentence. As in the UK, a convicted fraudster cannot, in the absence of a successful appeal, be suddenly released by the authorities. Equally, somebody who is being tried in a court of law cannot be arbitrarily discharged mid-trial.
Starmer’s request, therefore, was legally absurd, as any barrister “learned in the law” should have known.
If, moreover, the chief executive (or his subordinates) was to interfere in Lai’s trial, as Starmer wanted, this would place him in direct violation of the Basic Law’s Article 63. This provision vests the control of prosecutions in the Department of Justice, “free from any interference”. As chief executive, Lee is obligated to uphold the Basic Law, and there is no way he would betray the trust reposed in him in order to humor Starmer.
Regrettably, Starmer’s disregard for the rule of law rubbed off on his foreign secretary, David Lammy. Although he is also a barrister and presumably respects criminal justice, he felt he had to dance to his boss’s tune. After huge pressure was brought to bear upon him by Lai’s foreign supporters to meet Lai’s son, Sebastien, he finally capitulated on Nov 12. After the meeting, he duly parroted Starmer’s line, pledging that his government would continue to press for Lai’s “immediate release”.
Although Trump, Starmer and Lammy all want Lai released, none of them has indicated the legal procedures by which this could be achieved. This may be unsurprising in Trump’s case, who imagines that bullying will suffice, but it is incredible in the case of the other two. They both realize that what they seek is illusory, and that, unless there is to be an abuse of legal process, mechanisms do not exist to enable Lai’s release.
In theory, the chief executive, John Lee Ka-chiu, could, in relation to Lai’s fraud convictions and sentences, invoke his Basic Law power to “pardon persons convicted of criminal offenses or commute their sentences” (Art 48.12). Likewise, this power could be invoked if Lai were to be convicted in his current legal proceedings. The effect of a pardon is to remove the consequences of a conviction, although it does not erase the conviction itself.
Like any other suspect thought to have broken the law, Lai is undergoing the type of trial that is familiar in every common law jurisdiction. As always, criminal justice will take its course, irrespective of how many foreign politicians his son recruits to his cause
However, the chief executive can only exercise the power in any case if sound reasons exist, and political interference by foreign politicians does not begin to qualify.
Although the power to pardon exists throughout the common law world, it is normally invoked as an act of clemency, to forgive a criminal for having committed an offense, or to redress a miscarriage of justice. In the UK, there is a body of case law on when pardons are appropriate and when not, and both Starmer and Lammy must be aware of it. If they truly imagined Lai qualified for a pardon, either now or in the future, they would undoubtedly have provided their legal reasoning, and their silence speaks volumes. They, of all people, must realize that political pressure is never a basis for the granting of a pardon.
If, moreover, they supposed that the secretary for justice, Paul Lam Ting-kwok, would intervene in Lai’s trial by entering a nolle prosequi (a legal device that stops a prosecution), they were living in cloud cuckoo land. As in the UK, this is only done in exceptional cases. The Prosecution Code (2013) indicates that these may arise “in cases such as where an accused suffers from a cognitive or physical incapacity that is likely to be permanent, or where it would prevent the interests of public justice being thwarted (for example, where interference with a witness cannot be adequately addressed by an adjournment)”.
In his five years as the chief prosecutor of England and Wales, Starmer would have been closely involved in many cases involving a nolle prosequi. He must know that it is not legally open to Lam to issue one in Lai’s trial because of foreign pressure. Indeed, were Lam to do so, his decision could be judicially reviewed, as being contrary to established prosecution policy.
In any event, on Nov 8, Lam made clear that he would not “waver in the duties I believe I have to fulfil for Hong Kong”. As an ex-chief prosecutor whose responsibilities once mirrored Lam’s, Starmer must surely appreciate this. He must also know that the three judges trying Lai are also committed to doing their duty and dispensing justice. Upon appointment, they swore to act “conscientiously, dutifully, in full accordance with the law, honestly and with integrity, safeguard the law and administer justice without fear or favor, self-interest or deceit”. If Starmer supposed they would break their judicial oaths and “immediately” release a suspect undergoing trial because of external pressures, he must have forgotten how professional judges conduct themselves in common law jurisdictions (either that, or his judgment has been overborne by his twin obsessions with political posturing and gratifying the US).
Although Trump, Starmer and Lammy can bluster away until the cows come home, they will have to learn the hard way that Hong Kong’s legal system is bigger than any of them. It is committed to delivering justice and can withstand malign pressures from abroad. Like any other suspect thought to have broken the law, Lai is undergoing the type of trial that is familiar in every common law jurisdiction. As always, criminal justice will take its course, irrespective of how many foreign politicians his son recruits to his cause.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
