Hong Kong’s detained pro-democracy media tycoon Jimmy Lai is taking legal action to try to stop police searching his phones, which he says contain protected journalistic material.
Lawyers for the Apple Daily founder filed a notice on Wednesday seeking a judicial review of the national security search warrant authorised by Principal Magistrate Peter Law.
Lai, along with six former staff members of Apple Daily and its parent company Next Digital, have been charged under the Beijing-imposed national security law, as well as a colonial-era sedition law.
The 74-year-old faces four charges: two counts of conspiracy to collude with foreign countries or external elements, one count of collusion with foreign forces, and one count of conspiracy to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications.
Since being denied bail in December two years ago, Lai has been sentenced to 20 months in jail over protest-related cases, including over the 2020 banned Tiananmen vigil.
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must affect the wider public interest.
National security search warrant
National security police confiscated two phones from Lai’s home on August 10, 2020, according to the notice. On the same day, over 100 police officers raided the headquarters of Next Digital and Apple Daily in Tseung Kwan O.
Lai between April and June this year identified thousands of items on the two phones as journalistic material, which is supposed to be protected from police search and seizure. The commissioner of police disputed 8,179 claims.
Lai’s lawyers received a letter from the Department of Justice on July 8 this year “to the surprise of [Lai],” notifying them that police had obtained a new search warrant under the national security law to cover the contents of the two phones and their copies, according to the notice filed by his lawyers.
Magistrate Law had said there were reasonable grounds to suspect that the phones contained “evidence of an offence endangering national security,” regardless of whether the devices contained journalistic materials.
The police chief then asserted that according to the warrant, he had “the authority to search the [journalistic materials]” claimed by Lai.
Dispute on inclusion of journalistic materials
Lai’s team disputed the police chief’s assertion and argued that journalistic materials should not be included in the national security warrant.
They relied on section 83 of the Interpretation and General Clauses Ordinance, which states that unless specified in the respective ordinances, any warrants should not be construed as conferring the power to search or seize materials that are or are suspected to be journalistic materials.
The team argued that the implementation rule of the sweeping security legislation, on which the national security search warrant was based, “does not confer any power to the Magistrate to authorise the [commissioner of police] to search and seize any [journalistic materials].”
“In the absence of express wording, the definition of ‘specified evidence’ cannot be construed as including [journalistic materials], which are protected by the right to freedom of expression and freedom of press,” the notice read.
No trial date yet
In March the case against Lai and the six former staff members of Apple Daily and Next Digital was transferred to the Court of First Instance, but no trial date has been set yet.
Lai’s legal team wrote in the notice that the secretary for justice had yet to decide whether a panel of judges would try the case, and the team was told that “the selected prosecuting counsel is not available for the rest of 2022,” and that no indictment had been drawn up.
“For a trial of this complexity, it seems unlikely the trial can take place until the end of 2023 or early 2024,” the notice read.
The High Court will deal with Lai’s application in respect of the phones on August 22.