Tommy Suen and Kacee Ting Wong say the landmark trial of the founder of Apple Daily represents a successful implementation of the NSL

After a panel of three judges in the High Court found Jimmy Lai Chee-ying guilty of two counts of conspiracy to collude with foreign forces to endanger national security under the Hong Kong SAR National Security Law (NSL), and a third count of sedition under the Crimes Ordinance, Western politicians, media outlets, and organizations that are hostile to China launched a new round of attacks on Hong Kong and its legal system, framing Lai’s case as “political persecution”.

Some media organizations have engaged in mental gymnastics to conflate Lai’s security-related criminal acts with freedom of the press and of expression. Disinformation and false narratives repeatedly propagated by external critics are intended to create a distorted picture about Lai’s case, making an excuse for interfering in Hong Kong’s judicial process.  

We feel obliged to set the record straight.

First, the allegation that the NSL was being applied retrospectively in Lai’s case is totally misleading. Lai’s conduct before the promulgation of the NSL in June 2020 was considered only insofar as it provided contextual background relevant to the charges against him, not as a basis for his conviction. The principle of nullum crimen sine lege (no crime without law), which is a cornerstone of due process, has been strictly adhered to by the court in the trial of Lai’s case. The court was satisfied that after the promulgation of the NSL, Lai persisted in seeking foreign interference in Hong Kong affairs by way of seeking sanctions, blockades, and other hostile measures against Hong Kong.

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It was held by the three judges that “there is ample evidence before us that after the NSL”, Lai continued to express an anti-China stance and carried out the campaign for requesting United States’ sanctions and other hostile measures against Hong Kong  but he did so by adopting a more indirect and subtle approach by toning down his rhetoric. Lai sought to reduce his legal risks by attempting to operate in the “grey area” and adopting an implicitly disguised and subtle approach. The only change was form, not substance, in his acts of collusion.

After the promulgation of the NSL, Lai persisted in seeking the imposition of blockades and interference from foreign countries, with a view to facilitating his cause. The court also found that the pre-NSL agreement to seek US sanctions and other hostile measures continued to exist after the NSL, with Lai remaining as the mastermind. Judge Esther Toh Lye-ping emphasized that Lai’s actions were motivated by resentment of and hatred for China.

Second, and more importantly, Lai’s case is not a “political trial” targeting freedom of speech, as Lai’s Western apologists claim. Nor is the trial a “political campaign” to attack Lai’s self-proclaimed democratic values. Lai was charged and convicted of criminal acts of conspiracy to collude with foreign forces to endanger national security and publishing seditious materials, not his political views, which are irrelevant in this case. Western politicians, human rights organizations, and media outlets have portrayed Lai’s media group as an independent and outspoken journalistic institution, framing the prosecution of Lai as an attack on freedom of speech. In actual fact, inside Lai’s news media kingdom editorial independence and other much-cherished journalistic principles were thrown into the deep end of an authoritarian pool supervised by Lai and left to drown. Lai was notorious for his hands-on management style. In her mitigation, Chan Pui-man, Apple Daily's former associate publisher and a co-accused in this case, regretted that she had not stood firmly by her journalistic principles.

Freedom of expression is protected in Hong Kong under Article 27 of the Basic Law. In HKSAR vs Ng Kung-siu, the Court of Final Appeal made it clear that restrictions on the exercise of this right must however be provided by law and must be necessary in a democratic society in the interests of national security or public safety, public order, the protection of public health or morals or the protection of the rights and freedom of others. Lai is entitled to propagate his controversial political views, but he is not entitled to instigate hatred against the central and Hong Kong Special Administrative Region governments by publishing seditious material with the aim of facilitating regime change.

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Lai’s lengthy trial has highlighted the court’s strict adherence to the common-law principles of due process and transparency. For instance, the court has not given weight to the opinions expressed by various prosecution witnesses. Some of their opinions might cause prejudice. The court just considered their factual evidence. The conviction verdict is well-founded and reasoned, fully demonstrating that the court has made its decision strictly in accordance with the law and evidence.

Critics of Lai’s trial under the NSL have turned a blind eye to the existence of similar national security laws in many Western countries. They also lost sight of the fact that Hong Kong courts have successfully construed and implemented the NSL in accordance with established common-law principles. Lai’s trial strengthened the contention that the vitality of the NSL, which is the anchor of stability in the city, lies in its implementation. The landmark trial represents a successful implementation of the NSL.

Tommy Suen is a community services officer of BPA Eastern District,  director of youth development affairs of Chinese Dream Think.

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, chairman of Chinese Dream Think Tank.

The views do not necessarily reflect those of China Daily.