After the Apple Daily founder, Jimmy Lai Chee-ying, was sentenced last month to 20 years’ imprisonment for three national security offenses, there was every expectation he would file an appeal. After all, the Hong Kong Bill of Rights Ordinance guarantees the right of appeal (Art 11(4)), and he was entitled to challenge both his convictions and sentences, as he did previously. In 2022, the Court of Appeal quashed his conviction for organizing an unlawful assembly, and only last month it also quashed his two fraud convictions, so he was fully aware of his rights.

However, a lawyer representing Lai announced on Friday that there would not be an appeal this time. He said, “We can confirm we have received clear and definitive instructions not to lodge an appeal against conviction or sentence,” which was unequivocal. But there was no elaboration, and everybody was left in the dark over the reason he chose not to exercise his rights.

Although the decision astonished observers, the corollary of the right of appeal is the right not to appeal.

There was, unsurprisingly, speculation over Lai’s reasons, some of it malicious.

For example, Benedict Rogers, the serial fantasist who co-founded Hong Kong Watch, the anti-China propaganda outfit, claimed: “It was obvious that an appeal would not succeed.” This was because “the sentence is politically predetermined and, as such, Hong Kong’s courts are no longer independent” — for which, as always, he produced no evidence.  

As a blinkered ideologue without legal understanding, Rogers was unaware that a sentence is distinct from a conviction. If, in their 855 pages of reasons for the verdict, the three trial judges had made errors of law or misconstrued the evidence, Lai’s six-barrister legal team, ably led by Senior Counsel Robert Pang Yiu-hung and including King’s Counsel Marc Corlett, would undoubtedly have exploited it fully in the Court of Appeal — and sought to have the convictions set aside.

While Lai chose not to appeal, his confederate, Fung Wai-kong, the former managing editor of Apple Daily’s English edition, decided to challenge his 10-year prison sentence. Although he pleaded guilty at the outset of the trial, his decision only added to the mystery. After all, on the face of it, Lai had nothing to lose by doing the same.

Although one can only speculate, there are four possible reasons why Lai has chosen not to appeal.

First, Lai’s pockets may not be as deep as everybody imagined. His large legal team in Hong Kong (including top-flight solicitors’ firm Robertsons) and his UK-based “international legal team”, comprising five British barristers led by King’s Counsel Caoilfhionn Gallagher, have been retained for many years and will have cost him an arm and a leg.

Lai’s finances, moreover, were never as healthy as some supposed, and his legal bills will have taken a heavy toll. His media group, Next Digital, the publisher of Apple Daily, was certainly not as successful as is often thought. Based on records leading to its closure in 2021, the newspaper recorded a full-year loss of $53 million in the 2019-20 financial year, meaning daily losses at that time (which included the insurrection months) were between $145,000 and $150,000.

However, given the extent of Lai’s support in Western capitals, cash shortages are unlikely to have been the determining factor. In any event, an out-of-pocket offender can always turn to the Legal Aid Department for public assistance in funding an appeal. 

Lai’s crimes were heinous, threatening the very survival of the “one country, two systems” policy. He willfully colluded with foreign powers to endanger national security, and he would have known the risks he was taking. While hopefully repenting of the harm he caused and the people he misled, he must now live with the consequences of his folly

Second, Lai has been continuously involved in criminal proceedings of one sort or another since 2020, and there are now no outstanding cases. He could have decided that the best thing for his own peace of mind was to come to terms with his guilt and accept his situation. He may simply have decided to call it a day.

Third, and perhaps most likely, it is wholly possible that Lai’s lawyers have advised him that he has no arguable grounds of appeal. In Hong Kong (and elsewhere in the common law world), barristers are under a duty to only advance grounds that are meritorious, and not to waste the time of the Court of Appeal with frivolous arguments that have no prospect of success. Given the care with which the trial judges formulated their reasons for convicting Lai, and bearing in mind that his sentence of 20 years’ imprisonment might well have been higher, his lawyers could well have explained to him that any appeal would be dead in the water — with him sensibly taking their advice.

Fourth, Lai may be pinning his hopes on a pardon from the chief executive, or, failing that, on a commutation of sentence. After all, many of his foreign supporters have urged his early release on what they are calling “humanitarian grounds”, a reference to his personal circumstances.

However, the problem here is that the trial judges received extensive medical evidence indicating that Lai’s health issues, while not serious, were being fully addressed by the Hong Kong Special Administrative Region government’s medical personnel. He was certainly not suffering from any sort of terminal illness that might justify his early release.

Moreover, when Lai was sentenced, the authorities in both Hong Kong and Beijing responded that his punishment was appropriate and richly deserved, given the gravity of his crimes.

In these circumstances, despite the influence of the foreign allies who got him into trouble in the first place, Lai should avoid raising his hopes of an early release for humanitarian reasons.    

If he can now make the best of his situation, distance himself from everybody trying to make hay out of his predicament, and concentrate upon becoming a model prisoner, his future may be less bleak than it might otherwise appear.

Although it is now more difficult for national security offenders to qualify for the one-third remission of sentence for good behavior that ordinary prisoners generally enjoy, it is still possible, and there is no reason to suppose that Lai will not qualify in due course. When, moreover, the time to be served is finally computed, relevant periods of custody prior to sentence will also be taken into account.

However, when all is said and done, Lai’s crimes were heinous, threatening the very survival of the “one country, two systems” policy. He willfully colluded with foreign powers to endanger national security, and he would have known the risks he was taking. While hopefully repenting of the harm he caused and the people he misled, he must now live with the consequences of his folly.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.

The views do not necessarily reflect those of China Daily.