Still Awaiting NSL Trial, Jimmy Lai Sentenced to Nearly Six Years in Prison for Fraud

On Saturday, a Hong Kong court sentenced pro-democracy figure and former Apple Daily owner Jimmy Lai to almost six years in prison on fraud charges related to a contractual dispute. Lai’s co-defendant and administrative director of Apple Daily’s parent company Next Digital, Wong Wai Keung, was sentenced to 21 months in jail. Following their conviction in October, Lai’s sentencing this weekend also includes a fine of two million Hong Kong dollars. The sentencing marks the latest step in an ongoing series of legal cases the Hong Kong government has waged against Lai, whom many human rights organizations argue is being scapegoated in order to further stifle free expression in the territory. Austin Ramzy from The Wall Street Journal reported on the arguments surrounding Lai’s sentencing:

He was sentenced in the fraud case by district court judge Stanley Chan to five years and nine months for using part of the headquarters of his media company, Next Digital, to house a small private consulting company in violation of the terms of the lease with a government-run industrial park.

[…] Defense lawyers argued that the consulting company, which provided secretarial and other services, was related to the overall publishing work Next Digital, and its office space was so small as not to warrant such a serious legal penalty.

The court found that “the fraud scheme was not sophisticated,” but said aggravating factors supported Mr. Lai’s punishment, including the 21-year length of lease arrangements, cost savings for the company and tax benefits for Mr. Lai. [Source]

Don’t draw any connection to politics,” the judge stated, with the Hong Kong government adding that Lai’s jailing “has nothing to do with freedom of the press or freedom of speech.” However, human rights NGOs viewed the outcome as another example of the government eroding basic rights. “The diversity of the charges held against Jimmy Lai, and the staggering severity of the sentences imposed on him, show how desperate the Chinese regime is to silence this symbolic figure of press freedom in Hong Kong,” said Cédric Alviani, Reporters Without Borders East Asia Bureau Head. Condemning the “grossly unjust outcome” of the trial, U.S. State Department spokesman Ned Price stated, “By any objective measure, this result is neither fair nor just.” The Chinese-state-run Global Times responded: “Ned Price should keep his mouth shut and should not comment on Hong Kong’s domestic affairs,” and noted that Lai’s case “will serve as an alert to youngsters.”

PEN International described Lai’s “disproportionate sentencing” as the “latest alarming sign of the erosion of freedom of expression in the territory”:

“The spurious sentencing of Jimmy Lai to almost six years’ imprisonment on 10 December 2022 – a date that marks the 75th anniversary of the Universal Declaration of Human Rights – is a damning illustration of how the right to freedom of expression has been undermined in Hong Kong. PEN International calls on the PRC and Hong Kong governments to end this miscarriage of justice and to immediately and unconditionally release Jimmy Lai,” said […] Ma Thida, Chair of PEN International’s Writers in Prison Committee. [Source]

In addition to this sentencing, Lai is also facing a much more severe legal trial under the National Security Law, whereby he could face life in prison for charges of colluding with foreign forces. Presiding over this other trial are three handpicked national security judges, who on Tuesday decided to adjourn the case until September 25, 2023. Hong Kong Free Press reported that the delay was in fact proposed by Lai’s legal team partly in order to allow his preferred lawyer, a British citizen, to complete other cases in early 2023, as well as allow the three judges to oversee their own other cases. Brian Wong and Edith Lin from the South China Morning Post summarized the legal battle over the eligibility of Lai’s lawyer:

Lai, who turned 75 last week, won permission from the High Court’s chief judge in October to hire London-based King’s Counsel Timothy Owen to lead his defence in the trial over charges of collusion with foreign forces.

In late November, the Court of Final Appeal cited technical grounds in dismissing the justice secretary’s last-ditch attempt to overturn the lower court’s ruling allowing the representation.

The top judges, however, left open the overarching question of whether legal practitioners from abroad should in principle be excluded from national security cases.

Chief Executive John Lee Ka-chiu asked the standing committee [of China’s National People’s Congress] to decide whether allowing overseas lawyers to take part in national security trials should be allowed given the sensitive nature of the proceedings. 

The Immigration Department has withheld Owen’s application for an extension of his working visa, having previously been allowed to take up another case in the city. [Source]

While there is a chance that the Standing Committee will ignore the request, human rights groups have described the Chief Executive’s request that Beijing rule on the eligibility of Lai’s lawyer as a “breach of judicial independence” and fear that the Hong Kong courts will again be overruled. “Lai’s jury-free trial holds little hope for justice and will likely become just another marker in the dismantling of the rule of law in Hong Kong,” said Mark Clifford, president of the Committee for Freedom in Hong Kong Foundation. Theodora Yu from The Washington Post shared other reactions to the handling of the national security case against Lai

If Beijing steps in, it will be another blow to procedural rights for defendants under the national security law, said Thomas Kellogg, the executive director of the Center for Asian Law at Georgetown University.

“We’ve seen in a number of cases, including Jimmy Lai’s case, of people being denied their right to bail,” he said, adding that Hong Kong’s policy of allowing only designated judges to rule in national security law cases “further compromises their overall right to a fair trial.”

Maya Wang, the associate Asia director at Human Rights Watch, urged the authorities to drop the case against Lai and “free him immediately.”

“Beijing’s elaborate criminal case against Jimmy Lai is a vendetta against a leading proponent of democracy and media freedom in Hong Kong,” Wang said. [Source]

Human Rights Watch expounded upon the significance of the Standing Committee’s potential decision to bar Lai’s preferred lawyer: “Barring defendants in national security cases from having foreign counsel will leave them with few or no Hong Kong-based lawyers willing to take their cases. Defendants would either have to hire lawyers compliant with Beijing’s demands, or risk being transferred to China and the Beijing-controlled legal system.” Erin Hale from Al Jazeera also shared analyses of how the decision would affect Hong Kong’s judicial system

“It is obvious that the [Court of Final Appeal, Hong Kong’s highest court,] has been in effect losing its final adjudication power promised by the Basic Law, when the executive government disrespects the local common law system and judicial independence,” said Eric Lai, the Hong Kong Law Fellow of the Georgetown Center for Asian Law.

“It chooses not to amend laws with public consultation, but to take a fast track without checks to achieve a political end. This would create a chilling effect on the local courts handling political trials that Beijing pays much attention to.” [Source]

Lai was first arrested on national security charges in August 2020, and over three years will have passed by the time his trial begins. He has been in custody since December 2020 and is currently serving a jail term of five years and nine months for a separate fraud case. Last December, he was sentenced to 13 months in prison for his role in a 2020 vigil commemorating the anniversary of the 1989 Tiananmen Massacre. Six other members of Apple Daily, who pleaded guilty last month to conspiracy to commit collusion, will have their sentences given at the end of Lai’s trial next year. On Thursday, Lai celebrated his 75th birthday, behind bars.



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