Jimmy Lai is escorted by the police on December 12.
Photographer: Paul Yeung / Bloomberg
Photographer: Paul Yeung / Bloomberg
For decades, Jimmy Lai has embodied the spirit of resistance in Hong Kong. He fled communist China at the age of 12 to work in a garment factory, launched a pro-democracy media empire after the 1989 Tiananmen Square crackdown, and became one of the world’s best-known critics of Beijing.
The town got another glimpse of Lai on a recent Saturday in December: Chained by the wrists, with a metal chain around his waist, the 73-year-old slowly shuffled into court, flanked by two correctional officers.
Prosecutors accused Lai under a sweeping national security law imposed by Beijing in June and said he colluded with foreigners by calling for sanctions against China. The judge – among those appointed by the Hong Kong leader to handle security law cases – refused bail and gave the prosecution more time to investigate media interviews and about 1,000 tweets for further evidence. The Hong Kong Supreme Court finally bailed Lai on December 23 on the condition that he stay in his home and not interview or post on social media.
The lawsuit against Lai, who denies wrongdoing, will test how drastically Hong Kong has changed in the past six months. After decades of enjoying freedoms that do not exist in mainland China, residents of the financial center are now being prosecuted for expressing political views considered threatening to the Communist Party – a violation of promises made by China at the time Britain transferred the former colony in 1997.
The courts are at the forefront of this clash between two very different legal systems: one aimed at keeping the Communist Party in power and the other stems from the English Common Law tradition that strives to treat everyone equally for the law. The Chinese police, prosecutors and courts respond to a secretive Communist Party committee, and authorities can detain suspects in national security cases without trial for long periods.
According to data collected by Bloomberg, only one of 40 people arrested so far by the new Hong Kong National Security Unit has been charged with violence. About three-quarters were detained for political statements, such as suggesting foreign governments to impose sanctions in Hong Kong or repeating pro-independence slogans in Facebook comments, protest songs, or on banners displayed in public. Others were brought in for financial crimes, including crowdfunding for protesters.
As the first security lawsuits begin next year, Hong Kong’s independent judiciary is emerging as the final check on Beijing’s power. As early as this year, China has increased control over the executive branch and disqualified some pro-democracy lawmakers – leading the rest of the opposition to resign en masse last month.
Chilling speech
Only one of the 40 people arrested by the Hong Kong National Security Unit was detained for an alleged violent crime
Source: Bloomberg analysis of Hong Kong police data as of December 7
Now officials in Beijing are trying to tighten their grip on the judiciary. Zhang Xiaoming, deputy director of China’s office for affairs in Hong Kong and Macau, announced last month that China would make more unilateral changes to the basic law – the territory’s mini-constitution – while proposing unspecified judicial reforms . In the comments to legal professionals, he said that “the word ‘patriotic’ should be added before the core values of democracy, freedom and human rights upheld by Hong Kong society.”
“The Communist Party sees the judicial system differently from Western democracies,” said Dongshu Liu, assistant professor of Chinese politics at City University of Hong Kong. “From their perspective, the judiciary should be part of the governing forces working together to achieve political policy. In Hong Kong terms, they understand the system is different, but they fear the independent judiciary is undermining their control. “
So far, the judges of Hong Kong have demonstrated their independence. While magistrates and judges have convicted about half of the 826 people who have completed legal proceedings, that’s only a fraction of the more than 10,000 people arrested by police last year during pro-democracy demonstrations before the security law went into effect . Police eventually dropped charges against more than 2,300 protesters, and more than 5,000 others have been released on bail or solved the case through a police alert.
Mass arrests
Less than a quarter of the 10,171 protest-related arrests by Hong Kong police go to court
Source: Hong Kong police data for Jun 9, 2019-Nov. 30, 2020; Bloomberg calculation
However, the new security law threatens to wipe out the city’s hard-earned legal reputation with amenities similar to those in mainland China, used to imprison people for vaguely defined political crimes. This can have important consequences for international companies: World Economic Forum Surveys show that Hong Kong’s judicial independence supports its position as one of the most competitive economies in the world.
“There is no doubt that Hong Kong’s institutional framework has been damaged,” said Max Zenglein, chief economist at the Mercator Institute for China Studies in Berlin. “Hong Kong has lost much of its international allure. It is no longer Asia’s ‘world city’, but rather China’s most global city. “
‘Extremely small minority’
The city was forced out in the local legislature without debate, and the full text of the national security law was first revealed on June 30 at midnight – the same time it went into effect. Framed as a necessary antidote to restore stability, the legislation claims global jurisdiction to prohibit secession, terrorism, subversion and collusion with foreign forces.
Carrie Lam, Hong Kong General Manager said in June that the law would only punish “an extremely small minority” while rejecting foreign criticism. But in a clear break with the past, Beijing is now also weighing up the decisions of Hong Kong courts, praising satisfactory rulings and using friendly media outlets to criticize others.
In November, Ta Kung Pao, which is owned by the Chinese government through the Hong Kong liaison office, criticized Judge Anderson Chow after ruling against the police. “Thugs rule, no human rights for police officers,” was the headline. The story ran alongside a cartoon of a protester wielding a weapon in front of a police officer and saying, “The judge is backing me!”
Even more troubling may be the way Beijing recently completely circumvented the Basic Law on Hong Kong-China Relations. Last month, China’s highest legislative body passed a resolution allowing for the disqualification of Hong Kong lawmakers not considered sufficiently loyal, which the local government immediately enforced.
“This could have very real implications for judicial independence,” said Thomas Kellogg, executive director of the Georgetown Center for Asian Law. “In decisive cases, judges may now ask: If Beijing does not like a particular outcome, will it use its constitutional authority to undo it?” “
In response to questions from Bloomberg, the Justice Department said it condemned the attacks on judges and was willing to prosecute contempt of court where necessary. It also said that prosecutors are not guided by “political or other irrelevant considerations” and refuted widespread criticism of the low rate of convictions among protesters arrested last year, saying it was “too early” to conclude that most cases have been dismissed.
The department “will not tolerate acts that appear to influence or interfere with the independent exercise of judicial functions,” he said. The agency also said that judges appointed by the chief executive to rule on national security matters “remain independent and impartial,” and dismiss criticism of the practice as “absolutely absurd.”
An Australian judge sitting on the bench in Hong Kong resigned after the security bill was passed, while the UK is investigating whether British judges should be removed from the Hong Kong Court of Final Appeal. Veteran lawyers say their younger colleagues can also join a growing number of Hong Kong residents who are leaving the territory, including former lawmakers and young protesters seeking asylum abroad.
Calling in London
In October, nearly 60,000 BNO passports for Hong Kong residents were approved
Source: UK Government
Yet some democracy activists like Jocelyn Chau still have faith in the courts, despite criticizing the way some protesters’ cases have been handled. In August 2019, the 24-year-old community activist was tackled by two police officers and arrested for live streaming a peaceful neighborhood gathering. She was charged with assaulting the agents, rather than the other way around.
In his verdict rejecting the charges, Magistrate Stanley Ho denounced the two officers for being “arrogant” and “irritated” when questioned about their “unreasonable, illogical” testimony, which he said was contradicted by a video of the incident. “The two police officers seem to be describing a situation from a different time and space,” he wrote.
She is now pursuing charges against the officers who arrested her. “In Hong Kong we can still fight for justice,” she said.
‘Dog’
Still, pro-Chinese groups attacked Ho for his judgment, with red graffiti emerging in Hong Kong calling him a ‘dog’. Some demonstrated outside the Supreme Court with a banner criticize him.
Tensions will only get worse as people in Hong Kong look more to the judiciary to control Beijing’s power after parliamentary elections have been delayed by a year and opposition politicians have been effectively neutered, said Jonathan Man, acting as Chau’s. lawyer and partner is at Hong. Kong Ho Tse Wai & Partners, who has handled hundreds of protest cases.
“People have too much faith in the judiciary because democracy is so disappointing,” he said. “The central government is not comfortable leaving all this power in the hands of Hong Kong judges.”
– With the help of Josie Wong and Shawna Kwan
(Updates with Lai’s bail in third paragraph)