A legal battle over Hong Kong’s effort to prosecute media tycoon Jimmy Lai (黎智英) on national security charges has made the once-unthinkable an imminent threat: moving sensitive cases to mainland Chinese courts.?
While Beijing has asserted the right to take over “complex” cases involving foreign nations since imposing a sweeping National Security Law on Hong Kong in 2020, it has so far not exercised the power. Instead, dozens of security cases are being prosecuted in local courts in the former British colony.
However, Lai’s foreign collusion case is testing Beijing’s patience for Hong Kong’s legal traditions, including an emphasis on transparency, precedent, judicial independence and the rights of the accused. Those values were on display last week, when Hong Kong’s highest court ruled that the founder of the now defunct Apple Daily newspaper could hire a renowned UK-based lawyer to defend him.
Hong Kong Chief Executive John Lee (李家超), a Beijing appointee, responded by requesting China’s top legislative body to intervene and prevent lawyers based overseas from participating in such cases.
Hong Kong’s sole representative on that body subsequently suggested that defendants who failed to find local lawyers could find their cases transferred to Chinese courts, where national security trials are speedier and more secretive.
“If such difficulties really arise, they can be sent back to the mainland for trial,” Tam Yiu-chung (譚耀宗), a member of the National People’s Congress Standing Committee, told reporters on Sunday in Hong Kong.
Although Tam said such action would only be necessary in a “special case,” the threat illustrates the growing pressure on the judicial independence often cited as a reason for Hong Kong’s success as a global financial center.
Local courts risk being overruled by Beijing or losing control of cases altogether if they break with the government.
The issue of transferring cases to mainland courts was at the center of historically large and sometimes violent protests that erupted in 2019, which ultimately prompted Beijing to impose the security law and arrest Lai.
Those demonstrations were sparked by since-withdrawn extradition legislation that would have allowed the territory to send suspects in some criminal cases to the mainland.
“This will likely be viewed as a threat in the Hong Kong courts and legal profession to go along with Beijing’s demands or else, even when those demands are articulated indirectly through a supporter or the media,” said Michael Curtis Davis, a professor of law and International Affairs at Jindal Global University in India and a former law professor at the University of Hong Kong. “We can expect these sorts of threats to continue and be used in other high-profile cases when Beijing wants to pressure the courts or others to do its bidding.”
When asked to comment on whether a request had been made to transfer Lai’s case to the mainland, a spokesman for the government’s Security Bureau referred to Article 55 of the National Security Law.
That section allows Beijing to exercise jurisdiction over cases involving the four crimes listed in the law under certain conditions, such as being “complex due to the involvement of a foreign country.”
Hong Kong has so far charged at least 88 people on allegations related to those four crimes: secession, subversion, terrorism and foreign collusion.
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