On December 20, former non-permanent judge of the Hong Kong Court of Final Appeal, Jonathan Sumption from the UK, wrote an article in The New Statesman criticizing the conviction of Jimmy Lai, the founder of Next Digital, stating that the Hong Kong judicial system shows clear hostility towards the defendant and suppresses political dissent. Sumption described Hong Kong’s basic political freedom as plunging into an abyss, gradually becoming a part of authoritarian China.
Jimmy Lai was convicted last week on charges of “colluding with foreign forces” and “conspiring to publish seditious publications”. Sumption pointed out that Lai had been advocating for the realization of universal suffrage promised in the Basic Law through Apple Daily, speeches, and interviews, and had been a thorn in the side of Beijing for many years. Lai has often been labeled a traitor by Chinese state newspapers and Hong Kong papers controlled by China. Sumption believes that there was almost no chance of any other outcome in Lai’s trial from the beginning and mentioned the possibility of Lai spending the rest of his life in prison.
Sumption criticized the Hong Kong judicial system for suppressing political dissent on two fronts: the laws themselves are oppressive, and the judges themselves exhibit oppressive behavior even when the law allows for discretion.
He analyzed that Lai’s conviction for “sedition” stems from a colonial-era law enacted in 1938, prohibiting any speech intended to “incite hatred or contempt towards the Hong Kong government, or incite dissatisfaction.” After the 1967 riots, the Hong Kong government had not used these provisions. It is widely believed that the law was abolished by the Hong Kong Bill of Rights Ordinance passed in 1991, which safeguards freedom of speech and automatically repeals any existing laws that contradict it. However, the National People’s Congress Standing Committee of China removed the provision on automatic repeal from the Bill of Rights Ordinance, thereby allowing the sedition law to continue under the new political order.
The article points out that the maximum sentence for sedition is only two years, and Lai had already served the complete term while awaiting trial. However, the charge of “colluding with foreign forces” under the Hong Kong National Security Law turns requesting foreign sanctions against Hong Kong or China into a criminal offense.
Sumption mentioned that Lai admitted he had called for sanctions before the National Security Law came into effect, but stopped doing so after the law took effect on July 1, 2020. He was only granted bail for six months during which the evidence of his calls for sanctions was extremely weak, largely based on his columns in Apple Daily or interviews criticizing the Chinese government and the National Security Law. The judges inferred that these remarks were subtly urging further sanctions, even though there was no explicit mention of sanctions.
Sumption quoted one of the supporting pieces of evidence for the prosecution, where Lai had reportedly told an assistant that it was preferable to impose sanctions on China rather than Hong Kong, implying a weak connection to contacts with US officials. Sumption highlighted the Hong Kong court’s disregard for the International Covenant on Civil and Political Rights adopted by Hong Kong, as well as the protection of citizen rights and freedoms as guaranteed by the Basic Law and the covenant.
The article details Lai’s 855-page judgment, which consistently criticized his animosity towards China and the Chinese Communist Party, criticisms of officials in mainland China and Hong Kong, opposition to the National Security Law, support for the democratic camp, and his preference for Western values over Chinese values, as if these were inherently wrong or even criminal. It depicts a scenario where anyone criticizing China or the Hong Kong government or advocating for more democracy could potentially be imprisoned, indicating the gradual integration of authoritarian characteristics into Hong Kong under Chinese influence.
Sumption questions why the judicial system has shown such blatant hostility towards the defendants in politically sensitive cases, equating political dissent with treason and subversion. He believes the answer lies in the oppressive atmosphere that has engulfed Hong Kong since 2020 – not only with dissidents being imprisoned but also with libraries being sanitized, school curriculums being altered, human rights advocates being aggressively interrogated by the police, unions and political organizations being forced to disband, and media programs being censored or interfered with. In cases of political sensitivity, acquittals or bail approvals often provoke immediate outrage from pro-Beijing legislators and commentators. The concept of “patriotism” – as defined by China – has become a prerequisite for all public officials, including judges.
Sumption pointed out that while Hong Kong’s legal system is based on British common law, it no longer upholds British legal values, with the pervasive influence of China becoming evident. In politics, China holds all the cards, and through the National People’s Congress Standing Committee’s “interpretations”, it can redefine the meanings of the Basic Law and the National Security Law.
He further noted that when it comes to issues aligned with Beijing’s political agenda, the rule of law does not apply, as the unity of the Chinese world is paramount, and any impediment posed by the rule of law is unacceptable to Beijing.
Sumption concluded by recounting a conversation he had with a senior appellate judge in Hong Kong, where the judge expressed a resigned perspective – that they cannot launch a guerrilla war against China, since they are part of China, with their roots in both China and Hong Kong. They do not have an exit strategy like the West, despite the constant demands from Western countries to uphold Western values. Sumption pondered on what exactly the West could offer Hong Kong beyond moral preaching and second passports, agreeing that it is indeed a valid question.