Jimmy Lai's Arrest and the Future of Hong Kong Criminal Procedure

By Jerome A. Cohen

PAUL YEUNG/BLOOMBERG

The recent arrest of Jimmy Lai for “alleged foreign collusion” is of special interest to me since I invited him and Martin Lee to join me in a breakfast discussion of Hong Kong at the Winston Lord Round Table on the Rule of Law and US Foreign Policy in Asia at the Council on Foreign Relations on October 25, 2019. I had never met Lai and was hoping that he would be as feisty as his reputation. I was disappointed because, although he was perfectly intelligent and thoughtful in his remarks, he was quite restrained, even though I urged him to speak out more vigorously. Martin, on the other hand, fortunately, was his usual dynamic, informative and outspoken self. 

Over the next few months, it will be very important to try to observe the procedures in these new types of Hong Kong criminal cases. To what extent will court procedures be open for public observation? Will prosecutors be obligated to reveal in open court the bases for the  arrests? Will defense counsel be allowed to inform the public about the details of the proceedings? Many questions have already arisen. For example, regarding the six overseas activists abroad recently placed on the Wanted for Arrest list (one is a US citizen), has the PRC implemented the Interpol notification process? If so, with what responses from various countries thus far? 

For Lai’s case, will there now be a move to transfer him and his co-defendants to the Mainland for investigation and trial? By what procedures? Secret or public? With any possible resort to HK courts? In a case that arose a few days earlier, are the four arrested suspects who are 21 and younger to be charged for their Internet messages alone or for other conduct? How will their cases be processed? If HK’s Director of Public Prosecutions has just resigned because of the refusal of his bosses in the Department of Justice and higher in the HK Government to allow him to know about NSL prosecutions, how much will the HK Bar, the media and the public be allowed to know about such matters?

I hope the courageous Jimmy Lai’s confidence in his prison future is not misplaced. In an interview with AFP, he said that “he is prepared for prison. If it comes, I will have the opportunity to read books I haven’t read.” He has said he will not leave Hong Kong. But can he be sure? If transferred for detention, interrogation and trial on the Mainland under the NSL, he will leave HK against his will.

Moreover, is he correct in assuming that, if imprisoned, he will catch up on his reading? Mainland jails and prisons are not as lenient as some Hong Kong counterparts. Ask the two Canadian Michaels what books they have been reading, even though the lights may still be kept on in their cells 24/7! Ask human rights lawyer Wang Quanzhang what he read during his five years of torture. Ask artist Ai Weiwei what he read during his months of “residential surveillance” at a designated location, even though he had to be released before prosecution because of political pressures.

If Apple Daily manages to continue to publish, I hope it can report on what has been too largely ignored to date— the underlying reasons why the HK Director of Public Prosecutions (HKDPP) resigned. What does this foretell for Jimmy Lai and many others that the HKDPP is not only not allowed to decide who gets prosecuted under the NSL, but he is not even allowed to know what is going on in the decision-making process! Good luck, Jimmy!!

Random Thoughts on the reach of China’s law enforcement – lawlessness – across borders

Photo source: inmediahk, flickr

How far is the reach of China's law enforcement or lawlessness? All eyes, particularly those of Hong Kong people, are now on the case of the five missing Hong Kong publishing company managers. Among them, Mr Lee Bo apparently was secretly taken away in Hong Kong and transported to Shenzhen. If indeed the PRC secret police kidnapped this fellow and played similar illegitimate roles in detaining some of his publishing colleagues, one would want to know what caused the police to take such daring and unwise measures. Was this "bookstore" about to come out with a book PRC officials are desperate to prevent?

This incident makes me recall the infamous Jiang Nan murder case (Gangnam murder) when Taipei mobsters, in cahoots with the Republic of China's Ministry of National Defense intelligence chief, rubbed out the Chinese-American journalist Henry Liu on Oct 15, 1984 in San Francisco because he was preparing a book that would have come out with more dirty laundry about the Chiang Kai-shek family. That case added to the pressures for political reform of the Chiang family dictatorship in Taiwan. The current Lee Bo abduction case also has potentially broad implications possibly going beyond its great importance to Hong Kong.

It was reported that Lee Bo sent a handwritten note back to HK claiming that he had voluntarily returned to the mainland and was "assisting" in related investigations If the HK police believe this one, perhaps the famous - now crushed - human rights lawyer Gao Zhisheng should write a letter to his wife telling her that he has been cooperating with an investigation all these years and is really in splendid shape. I have been advisor in a number of PRC criminal cases where the Lee Bo technique has been used not only in an effort to squelch publicity abroad but also to circumvent the PRC criminal procedure protections that are supposed to come into play if someone is formally detained under the criminal law rather than "volunteering" to cooperate. Kidnappers often use a similar technique to communicate with the victim's family.

We should ask why the PRC occasionally succumbs to the temptation to kidnap its citizens from HK or even foreign countries. It is because there are legal procedural barriers to transferring alleged offenders from Hong Kong or foreign jurisdictions to the Mainland. Even thoughHong Kong was returned to the Motherland in 1997, no agreement for "rendition" of wanted suspects between the two jurisdictions has yet been concluded. Hong Kong, like the US and many democratic countries confronted by the PRC's desire for an extradition-type agreement, has not found it politically possible to consent to send people to the Mainland for criminal trial because of the failure of Mainland justice to reach international due process standards. In the absence of an extradition-type formal agreement, sometimes the PRC and other jurisdictions are able to work out mutually acceptable ad hoc arrangements of an informal, but legal, nature. (See the recent ChinaFile discussion of this very current problem between the PRC and the US.) When that proves impossible, the PRC, and not only the PRC (cf. some US CIA "renditions" and kidnappings and remember Israel's pursuit of Eichmann), resorts to cruder techniques of various kinds, as Lee Bo's case demonstrates.

Alibaba, Joseph Tsai and the Future of South China Morning Post: Will the New Management Make Things Better or Worse?

by Jerome Cohen

In response to various queries about the background of Alibaba’s Joseph Tsai, I have a few tidbits of possible interest. Joe is a very able, dynamic lawyer turned businessman. I have only met him a few times very superficially when he was a young lawyer fresh out of Yale Law and working for a major American international law firm, Sullivan & Cromwell. His father, Paul, was my contemporary at Yale Law and a friend who returned to Taiwan from New Haven to work in government and then practice law with the family law firm in Taipei, the well-known firm of Tsar&Tsai founded by Paul’s father after he moved to Taiwan from Shanghai following Chiang Kaishek’s defeat on the mainland. Joe’s grandparents gave a dinner for me and my wife Joan during our first visit to Taipei in 1961. Although they had never yet visited the U.S. at that time, they spoke excellent English, probably as a result of missionary schooling in Shanghai before “Liberation”, and were charming people. Paul, Joe’s father, was always rather impatient with my interest in studying the PRC’s legal system and urged me to focus on Taiwan instead, something that I only began to do in the late ‘70s. My ties to Paul withered after I became active in supporting normalization of relations with Beijing. Joe obviously had a different attitude from his father’s, turning to business involving the Mainland not long after Deng’s Southern Tour in early ’92, and made Hong Kong his base. He also acquired Canadian nationality.

Joe apparently will take major responsibility for running the SCMP, at least initially. What he will do with it is unclear. A few sentences in his recent extensive public statements are worrisome, of course, to those who fear that he may make the SCMP merely a more influential version of the China Daily. For years even before Alibaba’s purchase, the SCMP’s reporting has been under ever greater Beijing influence. Some reporting, however, has continued to be quite feisty. The editorials have also often been punchy, and, until recently at least, the regular op ed writers have seemed diverse and quite free to express their opinions. For the past seven plus years, I have been writing controversial op eds for SCMP once or twice a month on an ad hoc basis and have never met any attempt to censor my views or deflect me from my choice of a sensitive subject.

Will the new management make things better or worse? Some current staff members who have been unhappy with their editors’ efforts to go easy on the PRC may finally give up the ghost and leave, as many predecessors have. Since the current news editors have already been leaning towards Beijing, the new owner need not replace them and can comfortably pledge not to interfere with editorial policy, at least as far as reporting goes. But reporters who have sought to resist editorial restrictions may now find less support than ever for their cause, and some are surely discouraged.

Yet Joe Tsai may surprise people. Although inexperienced in the news game, he might seize what is plainly an historic opportunity to create a world-class enterprise that will earn the praise of even liberal critics of the media and become prestigious enough to resist most pressures from the PRC. He surely has the ability to do this. One question concerns the future influence of Shanghai-based financier Eric X. Li, reported by David Barboza of the NY Times to have played an influential role in the acquisition. Li has been a strong and articulate supporter of PRC policies in the media and in political circles.

Having just seen two excellent films this week about the struggles of American media – “Spotlight” and “Truth”, I wonder whether there will someday be a comparable movie about the SCMP and Alibaba!