The trial of Hong Kong’s pro-democracy media magnate Jimmy Lai

Following three years in jail and a year-long delay on his trial, Lai’s case began in December 2023, making headlines internationally for its implications for Hong Kong’s future as a democracy. Despite Hong Kong operating under a common law system inherited from Britain, the Beijing-formulated national security legislation poses a major disruption to the existing freedoms of pro-democracy civilians and residents.

Lai’s is the highest profile case of the crackdown on freedom of the press, business and democracy in the region. His son Sebastien Lai is visiting Australia, along with lead counsel and civil liberties expert Caoilfhionn Gallagher KC, to highlight his father’s plight and the far-reaching implications of the case.

Press Freedom in Hong Kong has declined from number 18 in the world to around 140 in the last two decades. The imprisonment of Lai, and other pro democracy activists in Hong Kong, raises important questions around the government encroachment on media, political and economic freedom in the Asia Pacific region.

LSJ spoke with Jennifer Robinson, Barrister at Doughty Street Chambers, and Caoilfhionn Gallagher KC, Human rights lawyer. They are presently in Australia to give public and industry presentations on Lai’s plight.

Robinson has acted in prominent human rights and media freedom cases in domestic and international courts. Her work has involved securing the freedom of arbitrarily detained journalists, protesters, human rights defenders and Australian citizens detained abroad in countries around the world, including Julian Assange. She advises media organisations and journalists on media freedom and journalist safety, with clients including the BBC World Service; the International Federation of Journalists and bereaved families of Palestinian journalists, including Shireen Abu Akleh; the bereaved family of assassinated Maltese journalist Daphne Caruana Galizia; Julian Assange and WikiLeaks.

She explains, “We are not able to travel to or work in Hong Kong because of the threats towards us for our international advocacy on the case, including official Hong Kong statements accusing us of criminal offences for raising Jimmy’s case at the United Nations. Given the pressure on the domestic legal team, we have no communications and are completely separate.”

Gallagher’s international work includes acting in many cases involving arbitrary detention: she has secured the freedom of imprisoned journalists, peaceful protestors, cartoonists and human rights defenders in countries worldwide.

She is an expert in journalists’ safety, and she leads the international legal teams for Jimmy Lai; for the bereaved family of assassinated Maltese journalist Daphne Caruana Galizia; and for Maria Ressa, the Nobel Peace Prize winning journalist in the Philippines. She is also a Commissioner of the Irish Human Rights and Equality Commission; Ireland’s Special Rapporteur on Child Protection; and an Adjunct Full Professor at University College Dublin.

Gallagher says, “Jimmy Lai is remarkable, inspiring man who has achieved so much over the decades, and who risked it all – his wealth and his position – to speak truth to power. He has paid a heavy price already. It is now the job of our team to do what we can to secure his freedom, and ensure that he does not die in prison – for being a journalist, and for being a pro-democracy campaigner.”

Robinson tells LSJ, “Having spent time in Hong Kong, I followed the protests and was horrified by closure of Apple Daily – and Jimmy’s arrest. I admire and respect Jimmy’s courage in speaking truth to power. When the opportunity arose to represent him, I was honoured to join the team. This is one of the most appalling cases of lawfare against a publisher, journalist and media entrepreneur anywhere in the world. Defending free speech and democracy – and those who speak truth to power – is what I do and what I enjoy.”

The National Security Laws were introduced in June 2020 following wide-spread pro-democracy protests in Hong Kong.  Two months later, in August 2020, Lai was marched out of the Apple Daily newsroom in a police raid. He was subsequently charged with “collusion with foreign forces” and accused of seeking to destabilise Hong Kong. Prosecutors pointed to articles in Apple Daily that raised dire prospects for Hong Kong’s future under Beijing’s influence and editorial demands for international sanctions against pro-Beijing officials.

He was later also charged with leading a pro-democracy protest and attending a banned vigil for the victims of the 1989 Tiananmen Square massacre in Beijing. Those charges led to a sentence of 14 months for “unauthorised assembly” and an additional five years in 2022 for a separate offence of fraud, related to a lease violation.

Lai has repeatedly been denied bail, and the British citizen’s choice of lawyer, UK silk Timothy Owen KC, was barred by authorities. In 2023, the Hong Kong government decided that foreign lawyers, who have operated in Hong Kong courts for decades, posed a national security risk, and would need permission to work on any NSL cases.

Hong Kong’s government claims a 100 percent conviction rate in NSL cases, which have targeted high-profile dissenters including pop stars, lawyers and politicians who led the pro-democracy movement.

Gallagher says, “We are now six months into Jimmy Lai’s National Security Law and sedition trial, and at the close of the prosecution case. The prosecution case demonstrates just how dangerous the National Security Law is.

“I call the charges ‘conspiracy to commit journalism’ as that is what we are seeing: allegations include, for example, him, as a newspaper owner, taking steps to secure more subscribers for Apple Daily and commissioning opinion pieces on public interest issues from leading figures, including the former governor of Hong Kong, Lord Patten.

“The prosecution further alleges that engagement with human rights organisations and foreign politicians – including here in Australia – to brief them about human rights concerns in Hong Kong constitutes ‘colluding with foreign forces.’

“We have even seen the prosecution claim that there is proof of his collusion with Australia and other countries because those countries shared his concerns about the National Security Law and suspended extradition arrangements with Hong Kong as a result. But in truth this simply shows that his concerns about the National Security Law were widely shared – not that he is a criminal.”

In May this year, current and former politicians from nine countries, including former UK Conservative party leader Iain Duncan Smith and former defence minister for Japan, Gen Nakatani, demanded to be called as witnesses in Lai’s trial. Founded in 2020, the Inter-Parliamentary Alliance (IPAC) on China, the members claim to have been cited more than 50 times in Lai’s national security trial, and have requested to submit evidence to the court. IPAC is formed of lawmakers from 34 legislatures and parliamentary bodies who are pushing for a coordinated policy from democratic countries towards China on issues such as trade, security and human rights. Hong Kong’s National Security law has been vehemently decried by the group, which as stated that it made “Hong Kong one of the most dangerous places in the world to disagree with the government”.

During his hearing before three judges in December, Lai was brought in through the back door, avoiding public or media scrutiny. Beijing has named Lai a “notorious anti-China element”. He has denied all charges, arguing he was only defending freedoms in Hong Kong.

Mr Lai is one of at least 250 Hong Kong civilians arrested since 2020 for allegedly endangering national security. Most have been denied bail, the right to a jury and their choice of lawyer to represent them in court.

Gallagher says, “The fact that there is an almost 100 per cent conviction rate under the NSL, and that the National Security Chief boasted of this, tells a clear story: a jurisdiction which now operates under a climate of fear, with a draconian law in place which criminalises dissent. The law itself is profoundly unfair and has been condemned by multiple governments worldwide, including the Australian Government, by specialist NGOs such as Amnesty International, and the UN Human Rights Committee and independent UN experts. Any trials which take place under this law are necessarily unjust.”

The threat to Lai now and what’s next

Gallagher explains, “Jimmy Lai has faced a barrage of spurious and oppressive prosecutions since his arrest in 2020. He has already been convicted of offences for his participation in peaceful protest in four separate sets of proceedings and has already served four lengthy sentences of imprisonment – and these convictions and sentences have been criticised by the UN Special Rapporteur on Peaceful Assembly, and many others.”

Lai’s current trial involves charges under the National Security Law and colonial-era sedition laws, focusing on both articles published by Apple Daily and allegations of collusion with foreign forces for raising human rights concerns with foreign Parliamentarians (including in the US, UK, Australia, Ireland and Japan) and the United Nations.

“In short, Jimmy Lai is on trial for being a journalist and a human rights advocate,” Gallagher tells LSJ. “These are not crimes; they are activities protected by international law. The trial itself is tainted with unfairness; there is credible evidence that testimony obtained through torture is being used against him, he has been denied his choice of legal representation, and independent trial observers have been detained and deported rather than be allowed to monitor the proceedings. If he is convicted at the end of his trial, he faces life imprisonment – and may die in prison. Given the almost 100 per cent conviction rate under the National Security Law, there is reason to fear the worst.”

Robinson says that the legal team “have made urgent appeals with UN Special Mechanisms to formally engage with China and Hong Kong on Jimmy’s case and require China to answer to the human rights violations and his arbitrary detention.”

“In our experience of cases involving arbitrary detention of journalists and human rights defenders, UN complaints, together with international pressure has been essential in raising the political cost of continuing unlawful behaviour and securing the release of our clients.”