A newspaper publisher should enjoy a “greater latitude” of freedom of expression as guaranteed by the constitutional right of press freedom, a lawyer for jailed media tycoon Jimmy Lai has told a Hong Kong court.
The court on Monday continued to hear closing arguments from the defence. Lai’s lawyer, Robert Pang, sought to convince the judges that press freedom was established as an individual right alongside freedom of expression because the media should be given greater freedom to publish diverse information and viewpoints.
If “a publisher, or reporter, or journalist, is so concerned [with prosecution], there will not be the ability to provide for the information that the public has the right to know,” Pang told the three judges presiding over the trial: Alex Lee, Esther Toh, and Susana D’Almada Remedios.
In response, Judge Lee questioned whether press freedom could be used as a defence with the rise of the internet, saying that ordinary people could reach as large an audience as the news media do online. “Everyone can say they are engaging in some forms of journalism,” he said.
The judge also said the charges against Lai concern an alleged request for foreign sanctions against China and Hong Kong, and that may fall outside of the legitimate boundaries of journalism.
Pang responded that the press should be given greater freedom because of “the constraints” that were placed on professional news media. Apple Daily “is fairly and squarely a newspaper,” he said.
He added the court must consider the protection of press freedom when deciding whether Lai’s past remarks amounted to a request for sanctions, given that no evidence of him directly making such an appeal had been presented.
The defence has argued that Lai had stopped asking for foreign sanctions against China and Hong Kong after the security law came into force in June 2020.
Lai has pleaded not guilty to two counts of conspiring to collude with foreign forces under the Beijing-imposed national security law and a third count of conspiring to publish seditious materials under colonial-era legislation. He faces life behind bars if convicted.
The media tycoon has allegedly used his now-closed Apple Daily newspaper to lobby foreign nations to impose sanctions, blockades, or other hostile activities against China and Hong Kong.
He also stands accused of inciting hatred against authorities in Beijing and Hong Kong with 161 op-eds he allegedly wrote and published on Apple Daily.
The tycoon’s long-running trial, which entered its 153rd day on Monday, is in its final stages as the court hears final arguments from both parties.
Pang and the three-judge panel butted heads on multiple occasions on Monday over legal matters relating to the case, including how to determine whether Lai had entered into the alleged conspiracies.
Regarding one of the foreign collusion charges, Pang argued that there had been no conspiracy because the offence was only created with the enactment of the national security law. “There’s no conspiracy, all we had was an agreement,” the lawyer said.
But the judges appeared unconvinced, with Judge Lee drawing an analogy to a hypothetical agreement to import cannabidiol, a banned substance also known as CBD, into Hong Kong.
Lee suggested that, when reaching a verdict in the hypothetical scenario, the court must decide whether the agreement to import the drug was carried out despite the ban having come into effect in February 2023.
On another occasion, Pang argued that Lai and his alleged co-conspirators had no intention to breach the national security law. The lawyer cited the oral evidence of ex-Apple Daily publisher Cheung Kim-hung, a co-defendant in the case who earlier testified against the tycoon.
But Lee sought further elaboration from the lawyer, enquiring whether an intention was necessary for the conspiracy to be formed.
Pang responded that the tycoon and the alleged co-conspirators “must’ve intended to endanger national security” for them to be found guilty.
Regarding the sedition charge, Pang read out passages from the oral testimony of former Apple Daily associate publisher Chan Pui-man, also a co-defendant turned prosecution witness.
Apple Daily’s critical stance of the authorities was only a way to bring about changes in government policies, Pang said, citing Chan’s evidence. That would not amount to a criminal conspiracy, the lawyer argued.
Judge Toh, however, said the court would have to decide whether Lai gave “editorial directions” to the management of the newspaper.
Pang will continue his closing arguments on Tuesday.
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