In this July 1, 2020, file photo, Hong Kong media tycoon Jimmy Lai pauses during an interview.Vincent Yu/The Associated Press
The long-awaited national security trial of Hong Kong pro-democracy media tycoon Jimmy Lai was adjourned Thursday as officials sought Beijing’s intervention to block his choice of lawyer.
Mr. Lai, 74, has been detained since late 2020, when the Apple Daily publisher was charged with two counts of conspiracy to collude with foreign forces under a new national security law imposed by Beijing after protests rocked Hong Kong the previous year.
With the trial expected to last at least 30 days and Mr. Lai facing what could be the rest of his life in prison, he hired Timothy Owen, a highly experienced British King’s Counsel, to represent him – partly, experts say, because a foreign lawyer would be less vulnerable to political influence.
Hong Kong authorities had themselves attempted to hire a top British lawyer to help prosecute Mr. Lai and other pro-democracy figures last year – he resigned under intense media and political pressure back home – but officials immediately sought to block Mr. Owen’s appointment. The government argued that having a foreigner represent Mr. Lai in a national security case was “incompatible with the overall objective and design” of the legislation.
That argument was not successful with judges at all levels of Hong Kong’s legal system, with the Court of Final Appeal dismissing the government’s case Monday. But despite that court’s name, there is a body that can overrule it: the Beijing-based National People’s Congress Standing Committee (NPCSC), which can “interpret” – essentially rewrite – Hong Kong’s de facto constitution, the Basic Law.
Mr. Lai’s case has now been adjourned to Dec. 13 so the NPCSC can issue its ruling and Mr. Lai can find a new lawyer. Few doubt what the decision will be. Mr. Owen, meanwhile, has been denied an extension to his Hong Kong work visa, so he will soon have to leave the city.
The prosecution of Mr. Lai and other executives of Apple Daily, once the city’s most popular and assertive pro-democracy tabloid, has already raised concerns about media freedom in Hong Kong. And Beijing’s intervention in his case will only renew questions about whether the rule of law still governs life in the city. Mr. Lai has been denied the right to have his case heard by a jury; instead, he is facing a panel of national security judges handpicked by the Hong Kong government.
Eric Lai, a non-resident fellow at the Georgetown Centre for Asian Law, said blocking Mr. Owen seems to be designed to enable the government “to further control the process and outcome of Lai’s trial.”
Unlike local lawyers, who are more susceptible to political pressure, Dr. Lai said the government may be concerned about what a foreign counsel “would tell the public during and after the trial.”
“Even under normal circumstances, a criminal defender from outside the jurisdiction need not worry as much about burning bridges with the prosecution or with the judge,” said Alvin Cheung, an assistant professor of law at Queen’s University. “They are therefore freer to put forward a robust defence.”
Prof. Cheung, who previously practised in Hong Kong, said lawyers in the city have increasingly become subject to government coercion, including surveillance and harassment by pro-Beijing media.
And unlike foreign judges, such as Canada’s own Beverley McLachlin, who only sit on a tiny handful of cases – none involving national security – “an overseas lawyer acting for a litigant in Hong Kong proceedings will get a much less filtered view,” Prof. Cheung said.
“It would be catastrophic – from the Hong Kong government’s perspective – if an outside lawyer were permitted to see the way in which state security ‘trials’ are being conducted and to tell the outside world about it,” he added.
Dr. Lai predicted the government’s insistence on barring Mr. Owen could be a precursor to introducing a list of designated lawyers for national security cases, just as officials already control which judges can oversee such hearings.
The Hong Kong Bar Association said in a statement that it hoped the NPCSC’s power to interpret the city’s constitution would be used “sparingly,” warning the “the exercise of such power will inevitably attract discussions and also criticisms of our legal system.”
While several pro-Beijing figures – including former Hong Kong leader C.Y. Leung – had come out against Mr. Owen’s appointment, others are reportedly uncomfortable with the government’s aggressive tack on this issue, fearing it could undermine confidence in the city.
According to the South China Morning Post, former secretary for justice Elsie Leung wrote to friends saying she supported the lower court’s decision to allow Mr. Owen to represent Mr. Lai.
She quoted Chinese President Xi Jinping, who spoke during a visit to the city in July of the importance of maintaining “Hong Kong’s distinctive status and advantages,” including its common law system.