A panel of three Hong Kong judges presiding over the trial of media tycoon Jimmy Lai Chee-ying on national security charges have suggested it would be premature to acquit him in the middle of proceedings based on what his defence team maintains is weak evidence.
Lai’s defence team on Wednesday argued that the evidence presented in 90 previous West Kowloon Court sittings was so tenuous that no reasonable person could convict if properly instructed on the applicable legal principles.
Robert Pang Yiu-hung SC, Lai’s counsel, told the court the prosecution had failed to show the 76-year-old was party to a criminal plot to instigate international sanctions against Hong Kong and mainland China after the enactment of the Beijing-decreed national security law in June 2020.
He said the case should be dismissed on the ground of “no case to answer” because of insufficient evidence.
Pang stressed the tycoon’s comments made after the law came into force about the merit and impact of sanctions could not be inferred as an intent to collude with a foreign government.
But Madam Justice Esther Toh Lye-ping was unimpressed by the argument and said determination of the facts should be, in principle, for a jury to decide.
She also highlighted a campaign for the intervention of foreign powers could manifest itself in many forms.
“Someone does not have to actually say ‘I call for sanctions’,” Toh said.
“You can, for example, say that sanctions would be helpful because this would apply pressure on the government to pay heed to what they are doing.”
Fellow justice Susana D’Almada Remedios highlighted an instance where Lai was said to have called on his now-closed Apple Daily newspaper to continue publication after he was remanded in custody in December 2020.
“What is the meaning of going on with the newspaper? We have to look at the evidence,” she said.
Mr Justice Alex Lee Wan-tang added that whether Lai knew the legality or illegality of his actions was “beside the point”.
“The question really is, after the passing of the [national security law], whether the defendant still had the intention to invite foreign authorities to impose sanctions on Hong Kong officials,” he said.
Lai, the founder of Apple Daily and an outspoken critic of Beijing, has denied two conspiracy charges of collusion with foreign forces and a third count of conspiracy to print and distribute seditious publications.
He is on trial before three judges hand-picked by the city’s leader to preside over national security proceedings, in the absence of a jury.
Prosecutors have accused Lai of having used the tabloid newspaper to trigger international sanctions and excite public disaffection towards the city government.
Lai was also said to have provided financial backing to the “Fight for Freedom, Stand with Hong Kong” (SWHK) lobbying group in a bid to trigger China’s political and economic collapse.
Pang maintained there had been no agreement reached among Lai and his associates to break the law.
He highlighted the failure by prosecutors to submit any evidence showing Lai’s involvement in the alleged scheme after the promotion of sanctions became a crime.
The counsel also quoted a civil law concept and contended any agreement made to attract foreign sanctions should be seen as being “frustrated” by a change in the legal landscape after June 2020.
But Anthony Chau Tin-hang, for the prosecution, countered and said the doctrine that arose from contract law was inapplicable to a criminal conspiracy.
Chau insisted there was “ample” direct evidence to show Lai had remained a participant in the conspiracy throughout.
He added Lee, in a decision to release Lai on bail which was later overturned, had said that whether the prosecution could make good their case “must be a matter for” the hypothetical jury to decide at the end of proceedings.
The bench will rule on the application to discharge Lai on Thursday.
