Once the trial of the former media magnate Jimmy Lai Chee-ying got underway before a three-judge panel of the Court of First Instance on Jan 2, the lead prosecutor Anthony Chau Tin-hang described him as “a radical political figure”.
He accused Lai, under the guise of “fighting for freedom and democracy”, of conspiring to call on foreign governments, including the United States, to engage in “hostile” activities against both the regional and central governments.
Lai is charged with two offenses of colluding with foreign forces to endanger national security, and also a third offense alleging a seditious conspiracy to incite public hatred of the authorities.
Apart from Lai, three companies associated with his former newspaper, Apple Daily, are also standing trial, accused of conspiring to collude with foreign forces and conspiring to publish seditious materials.
Once the prosecution closed its case after 92 days, Lai’s lead lawyer, Robert Pang Yiu-hung SC, submitted on July 24 that his client had “no case to answer”, given what he claimed was the unsatisfactory state of the evidence.
A “no case” submission is a legal device sometimes invoked by defense lawyers at the halfway point in a trial, and before the defense opens its own case. It means either that there is no evidence that a crime has been committed, or that there is some evidence, but it is tenuous and inconsistent in nature and cannot safely be relied upon.
Once a “no case” submission is made, the court must consider whether the evidence, taken at its highest, is such that the defendant could not properly be convicted upon it. If so, the case will be terminated.
However, the judges had no difficulty in disposing of Pang’s submission. On July 25, Justice Esther Toh Lye-ping said, “Having considered all the submissions, we rule that (Lai) has a case to answer on all the charges.”
But notwithstanding the ruling, the prosecution must, if there are to be convictions, still prove Lai’s guilt beyond reasonable doubt.
After the ruling, Pang told the judges that his client would testify in his own defense when the trial resumed.
In the United Kingdom, the ruling immediately triggered another bout of fatuous grandstanding at Doughty Street Chambers (DSC), the London base of Lai’s so-called “international legal team”, which comprises five barristers, led by Caoilfhionn Gallagher KC.
In a statement on July 25, DSC, a hotbed of China hostile sentiment, announced that Gallagher and Lai’s son, Sebastien, had “expressed grave concern at the continuing situation and Mr Lai’s plight, and have called for action to be taken to secure Mr Lai’s speedy release”.
As a layman, Sebastien Lai may be forgiven for naively calling on the UK government “to secure my father’s immediate release”. He did not explain how this might be achieved, and Gallagher had clearly not enlightened him. This was unsurprising, as theirs is a world of make-believe, and neither of them elaborated.
They may have imagined that some old-fashioned gunboat diplomacy from the UK’s new foreign secretary, David Lammy, would do the trick, or perhaps they favored the dispatch of a snatch-squad to whisk Lai out of Stanley Prison by air.
Although Gallagher is a lawyer familiar with how criminal justice works and supposedly a serious figure, she echoed Sebastien Lai’s call, saying the authorities “should release Jimmy Lai before it is too late”. This was reminiscent of the numerous calls she had made since she was hired to propagandize on Lai’s behalf in 2022. She has regularly asked the US, the UK and the United Nations to intervene in Hong Kong’s legal system, only to discover it is resilient and more than capable of withstanding pressure from any quarter.
Although Gallagher’s antics have produced nothing of substance to benefit Lai, they delighted China’s antagonists, who embraced her as a kindred spirit. She has, for example, shared platforms with the likes of Hong Kong Watch, the anti-China hate machine run by the serial fantasist, Benedict Rogers, who eagerly made common cause with her.
Indeed, it is surely no coincidence that Hong Kong Watch’s patron, Baroness (Helena) Kennedy KC, who served as “External Adviser” to the notorious “Uyghur Tribunal” in 2022, is also a member of Gallagher’s chambers. Another member is Paul Harris SC, the discredited former Hong Kong Bar Association chairman who fled Hong Kong in 2022 within hours of being interviewed by the national security division of the Hong Kong Police Force.
As Gallagher is an experienced barrister, she would have known better than most that a defendant cannot suddenly be released in the middle of his trial, unless on legal grounds. She would also have appreciated that, throughout the common law world, it is improper for anybody to attempt to pressure judges trying criminal cases. She would also have understood the sub-judice rule, which requires that there be no public discussion of matters that are being adjudicated by the courts, to avoid prejudicing the proceedings.
Apart from disregarding these basic precepts, Gallagher also misled everyone about Lai’s situation. She declared he was imprisoned because of his work as a media owner, writer and pro-democracy activist (and for running Apple Daily). Nowhere did she mention that Lai was imprisoned because he was convicted of fraud in December 2022 and sentenced to five years and nine months imprisonment. Fortunately, some people follow the news, so not everybody was conned.
This latest episode not only illustrated Gallagher’s distortions but also showed the extent to which Lai’s supporters are prepared to go to place Hong Kong in the worst possible light.
If the Bar Council of England and Wales ever becomes aware of Gallagher’s activities, it will hopefully explain to her that there are limits to how far even a hired gun can go and that basic standards cannot be compromised.
Gallagher’s team, which includes four junior barristers from DSC (Jonathan Price, Tatyana Eatwell, Jennifer Robinson and Sarah Dobbin), has been set a dreadful example. Who can blame them if they are left believing that it is ethically acceptable for a barrister to engage in crude propaganda on a client’s behalf, to associate with political fanatics, and to interfere with the independent judiciary of a common law jurisdiction. However big their fees, it is hopefully not too late for them to realize there are red lines that no barrister should ever cross.
Although Sebastien Lai appears to have lost touch with reality, this is perhaps understandable, given his feelings for his father. However, a hard-nosed professional like Gallagher has no such excuse. There can be no justification for leading father and son up the garden path with a series of political stunts that have generated publicity but led nowhere. Although she will be laughing all the way to the bank, her failure to deliver anything meaningful on behalf of her clients will not have surprised anybody in the know. This must have been obvious to the DSC high command from the outset, and should have been clearly explained to the parties before any money changed hands.
After Gallagher first appeared on the scene in 2022, Lai’s local lawyers, Robertsons, were at pains to distance themselves from her, for good reason. They would have known that political grandstanding could not avail Lai, and that he would be fairly dealt with by an independent judiciary, as has always been the case.
Thus, for example, in the Court of Appeal last August, Lai’s conviction for organizing an unauthorized assembly was quashed on evidential grounds. The Court of Final Appeal is also currently considering whether he was properly convicted of participating in an unauthorized assembly. The Court of First Instance is treating him no less fairly in his current trial. And if he is convicted, he can again exercise his rights of appeal.
Even if Gallagher has no qualms over inhabiting cloud cuckoo land, Lai’s local legal team lives in the real world. It knows his interests are being fully protected by the legal system, that the prosecution must prove his guilt beyond a reasonable doubt, and that justice will be done.
The author is a senior counsel and criminal justice analyst, 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.
