Blocking pro-democracy media tycoon Jimmy Lai’s overseas counsel from representing him in his national security trial is “persecution not prosecution,” his lawyer has said in an application to halt the trial on Tuesday.

Lai, who was granted permission to not appear in court, was represented by Senior Counsel Robert Pang at the High Court in front of judges Esther Toh, Susana D’Almada Remedios, and Alex Lee, who are all handpicked national security judges.

High Court
The High Court. Photo: Candice Chau/HKFP.

Lai, 75, originally faced a total of four charges under the sweeping security legislation and the sedition law. He stands accused of two counts of conspiring to collude with foreign forces and one offence linked to allegedly seditious publications.

His other charge of collusion with foreign forces has been saved on court files, meaning that – while the prosecution reserve the right to prosecute – they cannot do so without a judge’s permission.

The Court of First Instance dealt with an application from the media tycoon for stay of proceedings, meaning to halt the trial.

Susana D'Almada Remedios
Susana D’Almada Remedios. Photo: Judiciary.

Pang argued in court that the trial should be halted as there may be an apparent bias over how the designated judges mechanism was executed.

Cases under the Beijing-imposed national security law and colonial-era sedition law have to be handled by a group of designated national security magistrates and judges appointed by the chief executive.

The senior counsel said on Tuesday that there was a lack of transparency in the appointment of national security judges, including whether the city’s chief justice was consulted by the chief executive about the appointments.

Jimmy Lai
Jimmy Lai. File Photo: Kelly Ho/HKFP.

A “fair-minded” person may hold the perception that designated judges would prefer “not to rock the boat,” said the senior counsel

“In order to have an effective court, we have to have a court that is trusted, if there is any question about the independence and impartiality of the court… that cannot be allowed,” said Pang.

Lee, in response to Pang’s argument that handpicked judges might be perceived to have inherent bias, said that he had granted bail to Lai, and that the appeal court and the top court panel had ruled in favour of upholding the decision to allow an overseas counsel to represent Lai.

Pang also said that Chief Executive John Lee, in his previous role as the security chief, had criticised Lai and said the media tycoon was a criminal before the trial.

Toh, Esther 杜麗冰.jpg
Esther Toh. Photo: Hong Kong Judiciary.

The chief executive did not distance himself from appointing judges afterwards despite making those comments, said the senior counsel.

Toh said in response that as “professional judges,” they will ignore comments from the members of public and the executive when making their assessment. The judge added that, unlike a decision made by a jury, the panel of judges will give a full reason for their ruling, and the public would understand that they were not biased if they read the judgement.

The prosecution, led by Anthony Chau, said that – while the judges were appointed by the chief executive – the assignment of judges to specific cases was still under the purview of the judiciary.

The prosecutor added that judges were bound by the judicial oath, and it could “hardly be said” that there was any influence or interference from the government.

‘Persecution not prosecution’

Pang also argued that the executive’s attitude towards the admission of King’s Counsel Timothy Owen as Lai’s defence counsel was another reason to halt the trial.

Timothy Owen
King’s Counsel Timothy Owen leaving the Court of Final Appeal in Central on November 25, 2022. Photo: Candice Chau/HKFP.

The Court of First Instance approved Owen’s admission application in the media tycoon’s case in October last year despite objection from the Bar Council and the Department of Justice.

Owen’s admission sparked a debate on whether foreign lawyers not qualified to practise in Hong Kong should be allowed to take part in the city’s national security cases.

Following three more subsequent defeats at the Court of Appeal and the Court of Final Appeal, the chief executive invited Beijing to intervene on the matter.

The Standing Committee of the National People’s Congress (NPCSC) passed a decision in December last year saying that Hong Kong courts should request a certificate from the chief executive on the matter, and the city’s national security committee should step in if the city’s courts did not make the request.

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Justice Alex Lee. Photo: Judiciary.

After the NPCSC interpretation, Lai’s team filed a legal bid last month to challenge the national security committee’s designation that Owen’s participation in the case would harm national security, and the committee’s advice to the director of immigration to reject any further visa application made by Owen.

Pang said on Tuesday that the executive’s actions, including the secretary for justice’s omission from the media tycoon’s legal team that the national security committee had discussed the admission of Lai’s case in a meeting in January, were all part of a “concerted effort” to deny Lai’s right to legal representation.

The senior counsel, argued that the executive was acting in “bad faith.”

“The executive have adopted an attitude to the extent that it could be fairly described as persecution not prosecution,” said Pang.

Following Pang and Chau’s submission, the panel of judges said they would need to wait for a ruling on Lai’s separate legal bid before handing down a ruling, and said they aimed to make a decision by the end of this month.

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Candice is a reporter at Hong Kong Free Press. She previously worked as a researcher at a local think tank. She has a BSocSc in Politics and International Relations from the University of Manchester and a MSc in International Political Economy from London School of Economics.