Human Rights Day is observed on December 10. 41 years ago that day, the Formosa Incident took place. It marked the darkest time of modern Taiwan, but it also revealed the brightest side of human nature and inspired Taiwan’s later democratization. Unfortunately, this day is not China’s or Hong Kong’s to celebrate. In Beijing, national security agents monitor human rights lawyers and even restrict the freedom of movement of their families, which shows the irony of China’s claim to “rule by law”. In Hong Kong, Jimmy Lai, the founder of Next Digital Limited, has been charged with “collusion with foreign forces to endanger national security” by the National Security Department of the Hong Kong Police Force in accordance with the National Security Law for Hong Kong with the connivance of the Secretary for Justice. The offense is punishable by a maximum penalty of life imprisonment or a prison term of upwards of ten years.

Undoubtedly, Jimmy Lai’s Next Digital Limited has transformed the dynamics of the media in Hong Kong and Taiwan over the past 30 years to both acclaim and criticism. In terms of politics, especially concerning China’s governance of Hong Kong, the CCP regime has long detested the influence of his Apple Daily and Next Magazine, and has long desired to kill them off. It is not an exaggeration to say that Hong Kong’s civil society would not have been the same as it looks like today without Jimmy Lai. The endless movements and protests in the fight for democracy would have been rather different from what we have seen. The arrest of Jimmy Lai was an attempt to instill fear into and silence the media and society.

Jimmy Lai’s arrest and confinement are hardly surprising. What is admirable is that he has chosen to stay in Hong Kong and face the turbulence of the times even though he has had the opportunity and ability to flee abroad. Earlier this year, Next Digital’s headquarters was stormed by over a hundred police from the National Security Department, which drew widespread concern in Hong Kong. Lai was later charged with “fraud” and was even denied bail, and he will remain in custody until his trial in April next year. Lai has effectively been sentenced before a trial and jailed before sentencing. The civil case is being treated as a criminal one, which has aroused controversy among legal professionals. The incident gives the impression that the authorities have once again smeared and targeted dissidents on an economic pretext. Such trumped-up charges and retaliation are all too familiar for those who know one thing or two about modern China, aren’t they?

With Lai being charged under the National Security Law for Hong Kong, how the case will be handled has aroused widespread attention. According to Chapter IV of the law, the HKSAR shall have jurisdiction over such cases, and the law of the HKSAR shall apply to procedural matters. The trial shall be held in open court. However, there is a provision for circumstances in which “no bail should be granted” (Article 42). Unless there are health concerns (Jimmy Lai is 73 years old) or foreign factors that allow considerations for something like a political swap, it will be difficult for Jimmy Lai to regain freedom.

If the trial is held in Hong Kong, Lai’s case will be heard by a judge appointed by the Chief Executive (who is also the Chairperson of the Committee for Safeguarding National Security of the HKSAR) according to Article 44. As a person cannot be designated as such a judge if he or she has made any statements or behaved in any manners endangering national security (their definitions are unclear), there is no doubt that the case will be heard by a judge who is politically reliable and “trusted” by Beijing. As Lai’s case has to do with foreign factors, the Secretary for Justice can even direct that it shall be tried without a jury but by a panel of three judges (Article 46). Beijing can, through the Office for Safeguarding National Security, oversee, guide and coordinate with the HKSAR concerning the trial (Articles 49 and 53). When Lai is deprived of his litigation rights, a heavy penalty can be expected.

In fact, if Lai’s case is heard in open court, it will definitely bring about huge impacts on Hong Kong society and trigger support and concern from different countries. It will be another judicial focus after the trial of the nine leaders of the Occupy Movement (the Umbrella Movement) and might even become the Hong Kong version of the Formosa trial. This is not something Beijing wants to see. Therefore, I am of the view that Lai’s case, which has to do with Hong Kong’s civic society, press freedom and foreign relations, is likely to be the first to be heard in mainland China after the implementation of the National Security Law for Hong Kong. Lai will be the first to be extradited to the mainland.

According to Articles 55 to 57 of the law, the Office for Safeguarding National Security, which is not subject to the jurisdiction of the HKSAR, can initiate investigations into the case if it is difficult for the HKSAR to exercise jurisdiction over the case and the HKSAR government is unable to effectively enforce the Law. The Supreme People’s Procuratorate shall designate a prosecuting body, and the Supreme People’s Court shall designate a court. China’s Criminal Procedure Law shall apply to procedural matters. All this is aimed at reducing the transparency of the trial, completely insulating it from outside pressure and minimizing its impacts on Hong Kong society. If we still remember the twelve Hong Kong citizens held in Shenzhen and the HKSAR government’s failure to protect the interests of Hong Kong people, we will know that Lai’s situation will only get tougher.

That Lai has been further charged with a national security offense accentuates the ambiguity and feebleness of the concept of the so-called “national security”. The National Security Department of the Hong Kong Police Force has become like the “Eastern Depot”, a Ming dynasty spy and secret police agency. Its agents have terrorized every part of the city, and people panic at the mention of them. They have barged into a school campus, stormed a church, frozen bank accounts, made indiscriminate arrests and banned demonstrations. The lack of effective checks and balances from outside has made them a weapon for the regime to crackdown on Hong Kong’s civic society and dissidents. Words in the National Security Law for Hong Kong like “Human rights shall be respected and protected” (Article 4), “A person is presumed innocent until convicted by a judicial body” (Article 5) and “This Law shall apply to acts committed after its entry into force” (Article 39) are empty talks of no value. When Hong Kong is in late autumn, Lai’s case is even more frightening and chilling than the coronavirus.

(Wu Si-Bang, Hong Kong Scholar)

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