The detention of the founder of Next Media Group, Jimmy Lai, has been widely discussed, especially when the accusation of his “collusion with external elements” under Article 29 of the Hong Kong National Security Law is the very first of its kind since the enactment of the law on July 1 this year. Many people wonder how it would unfold.

However, even the top criminal law experts in Hong Kong may not have a clear clue. After all, the Hong Kong National Security Law was neither a law passed down by the British or passed by the local Legislative Council. Rather, it was forced into effect by the Standing Committee of the National People’s Congress of China. The Hong Kong public had not even read the draft beforehand. Many of the terms used in the law are not usually seen under the British common law. For example, if “conspiracy” is a crime, you will find a lot of cases exemplifying “conspiracy,” telling you what you can do and what you cannot do. However, Lai was accused of “collusion with external elements,” the “collusion” which is not a usual term in common law with barely any precedent.

Furthermore, the prosecution currently claims that they are still investigating, but it is still unclear in what will their lawsuit be grounded. Lai is now facing article 29(4), which is “…… request(ing) a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China, or conspires with a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China,…… to commit……imposing sanctions or blockade, or engaging in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China.” In short, it means seeking foreign sanctions against Hong Kong and China. If the media reports are correct, it seems that the prosecution has not yet explained in detail how Lai sought foreign sanctions after the enactment of the “Hong Kong National Security Law” in its statement of accusation in court. Therefore, outsiders could only speculate like blind men groping an elephant.

At present, the magistrate’s court denied bail for Lai, who has applied again at a higher court. Its success is unknown, especially when the Hong Kong SAR Government accused him of multiple crimes. With regard to bail alone, the Hong Kong National Security Law is different from general practice to stipulate specifically in Article 42 that “no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” It seems to assume that bail should be denied, which is different from the general principle of assuming that bail should be granted first.

And the most disturbing question is whether Lai will be sent to mainland China for trial. Although the Hong Kong National Security Law states that most cases will be tired in Hong Kong, but according to Article 55 and 56, if “the case is complex due to the involvement of a foreign country or external elements, thus making it difficult for the Region to exercise jurisdiction over the case,” if “a serious situation occurs where the Government of the Region is unable to effectively enforce this Law,” or if “a major and imminent threat to national security has occurred,” the case could be sent to mainland China for trial. The procedure adopted would no longer be the one of Hong Kong but one of the Criminal Law of the People’s Republic of China in mainland China.

Lai is accused of colluding with external elements, and he does have some connections with the political community in the West. Would that make the case “complex due to the involvement of a foreign country or external elements, thus making it difficult for the Region to exercise jurisdiction over the case?” As mentioned above, because the Hong Kong National Security Law was transplanted from mainland China, there is no precedent to be found, and everyone is blindly groping an elephant again.

Finally, one has to mention that according to Article 65, the power of interpreting the Hong Kong National Security Law belongs to the Standing Committee of the National People’s Congress of China, and according to Article 62, the Hong Kong National Security Law takes priority if it differs from other Hong Kong laws. After all, the power to interpret such a law lies in the hands of the Standing Committee. In short, all Hong Kong laws should make way for the Hong Kong National Security Law. Therefore, it is indeed not easy to analyze Lai’s case with the British common law commonly used in Hong Kong. It is even like a world apart.

(By K, Hong Kong Barrister)

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