The trial of Hong Kong’s former media magnate, Jimmy Lai Chee-ying, began last week. He is facing charges of colluding with foreign forces to endanger national security and conspiring with others to put out seditious publications. Unsurprisingly, this long-anticipated event has been met with a barrage of condemnation from the West. There are two main strands in the hostile Western reporting.
First, the case is being portrayed as nothing more than a show trial reminiscent of the sham Soviet trials of the Stalin era. The independence and integrity of Hong Kong’s legal system are being denigrated, to the extent that throughout the West, the Judiciary is seen as merely following the bidding of its political masters in Beijing. This narrative maintains that a fair trial for Lai is impossible, that the rule of law has been removed, and that a guilty verdict is a foregone conclusion.
These Western attacks on Hong Kong’s legal system have already been thoroughly demolished in China Daily articles by Grenville Cross, most recently on Dec 19. As an eminent senior counsel, law professor, and previously Hong Kong’s director of public prosecutions, he is in a much better position to comment on the Hong Kong Judiciary than politically motivated and poorly briefed commentators in the West.
He points out that not only is the rule of law alive and well in Hong Kong, but its independent judicial system is “highly rated globally”. In fact, Hong Kong was ranked 23rd out of the 142 jurisdictions surveyed in the “World Justice Project Rule of Law Index 2023” (the US was 26th). He also points out that, contrary to Western perceptions, there are a number of British judges serving in Hong Kong, including five nonpermanent judges in the Hong Kong Court of Final Appeal, two of whom are former presidents of the UK Supreme Court.
These British judges, Cross asserts, would be able to assure Western politicians that: “Jimmy Lai will enjoy all the fair trial protections available to defendants throughout the common law world, … will be able to give and call evidence and to challenge the prosecution witnesses, … will enjoy the presumption of innocence, and will only be convicted if the prosecution has proved his guilt beyond reasonable doubt.” He also points out that if convicted, Lai can appeal to a higher court, exactly as in Western countries. Indeed, Lai’s earlier conviction for organizing an unauthorized assembly has already been quashed by the Court of Appeal, clearly illustrating its judicial independence.
Moreover, there is nothing sinister, as portrayed in the West, about Lai being tried by a panel of three “hand-picked” judges with no jury. It is normal practice around the world for cases to be tried without a jury when national security issues are at stake. As for the “hand-picked” judges, the critics ignore the fact that Hong Kong’s chief executive appoints all judges on the recommendation of an independent body, the Judicial Officers Recommendation Commission (JORC), chaired by the chief justice. This means that all judges designated to handle national security cases have been approved by the JORC on the basis of their expertise, impartiality and integrity.
The other fact that is ignored by Western critics is that all three judges in this case, in addition to their impeccable credentials, have strong backgrounds in British law. Justice Esther Toh Lye-ping and Justice Susana D’Almada Remedios both studied law in the UK, while Justice Alex Lee Wan-tang studied law in Hong Kong under the British system and was senior crown counsel under the former British Hong Kong administration. To accuse them of being Beijing “puppets” is a complete travesty.
Having dismissed this first line of attack on Lai’s trial, we need to examine the second strand of the West’s condemnation and the real reason for the campaign to undermine the judicial process. This is all about the West’s hostility to the “draconian” National Security Law for Hong Kong (NSL), under which Lai has been charged. British Foreign Secretary David Cameron encapsulated this Western position in his unqualified condemnation of the NSL, maintaining that it has been used to target Lai “in a clear attempt to stop the peaceful exercise of his rights to freedom of expression and association”.
Cameron went on: “I urge the Chinese authorities to repeal the National Security Law and end the prosecution of all individuals charged under it.” The Economist summed up this Western interpretation of the case in its subheadline: “The outspoken media tycoon will be punished for supporting democracy.” This is a classic example of the old adage: Never let the facts get in the way of a good story.
The wise course of action for the West in Lai’s trial is to say and do nothing. It needs to accept that Hong Kong’s independent Judiciary will see that he receives a fair trial; that the charges against him would be equally serious if they were leveled in any Western country; that the trial needs to be viewed in the context of violent, pro-independence protests; and that China’s red line on national security is an understandable product of its history and geopolitical situation
The reality is that Lai isn’t being tried for “supporting democracy”. He is being tried for alleged collusion with foreign forces to endanger national security (under the NSL) and conspiring with others to put out seditious publications (ironically, under a law introduced under British rule). These charges would be regarded as serious in any country around the world and certainly in the US and UK. Imagine the reaction, for example, if one of Britain’s most influential media magnates were to be accused of colluding with foreign agents to endanger British security and conspiring with others to incite rebellion (sedition) through his publications. The only question would be whether he would be tried under Britain’s new National Security Act or the old treason laws.
Western critics seem oblivious to this sort of hypocrisy and also to the context in which the vilified NSL for Hong Kong came into being. There are two significant aspects to this context. First, the NSL was enacted not as a response to peaceful pro-democracy protests, but following months of rioting, violence, arson and attacks on public and private property, including an invasion of the Legislative Council Complex. All this is conveniently swept under the carpet by Western commentators, despite the fact that such actions would never be tolerated in their own countries.
The other context for the NSL, which is also ignored in the West, is that protesters were not just demanding greater democracy but also independence from China, in breach of the Basic Law and the “one country, two systems” constitutional arrangement that had been agreed upon between China and Britain for the 1997 handover of Hong Kong. This crossed a clear red line for China, as secession of any part of its territory is regarded as unacceptable. All countries have their red lines and China holds territorial integrity sacrosanct. This stems directly from both China’s history and geography.
The history of China from the First Opium War of 1839-42 to the defeat of the Japanese invasion force in 1945 is often referred to as China’s century of humiliation. This is for good reason. During this period, it was subject to a series of enforced “unequal treaties” and invasions that carved China up into British, French, Russian, German and Japanese “spheres of influence”. With the establishment of the People’s Republic of China in 1949, there was a determination for such quasi-colonial domination never to happen again.
Territorial integrity and national sovereignty have been fundamental principles for China ever since. This mindset, molded by China’s history, is reinforced by its geopolitical setting. It is a massive country of 1.4 billion people covering a huge part of Asia, bordered by 14 sovereign states, and incorporating diverse ethnic minorities. As with all great empires in history, the priority always has to be national security and the protection of borders in order to maintain unity and stability. If any part of the country is allowed to rebel or secede, cracks appear, the whole structure is threatened, and anarchy beckons. This historical and geopolitical context helps explain why national security is a clear red line for China.
All countries have different histories, different geographical settings, different characteristics, and therefore their own different red lines. Overseas commentators need to understand this and refrain from judging and condemning other countries’ red lines simply because they don’t match their own set of priorities, values or prejudices. This is a form of cultural imperialism that is doomed to fail.
The wise course of action for the West in Lai’s trial is to say and do nothing. It needs to accept that Hong Kong’s independent Judiciary will see that he receives a fair trial; that the charges against him would be equally serious if they were leveled in any Western country; that the trial needs to be viewed in the context of violent, pro-independence protests; and that China’s red line on national security is an understandable product of its history and geopolitical situation. This last point is particularly ironic, given that Western colonial powers played such a major role in making national security and territorial integrity so sacrosanct for China.
The author is a British historian and former principal of Sha Tin College, Hong Kong.
The views do not necessarily reflect those of China Daily.
