By Jerome A. Cohen
Jimmy Lai during an interview on May 29, 2020.
Today’s New York Times has a five-paragraph AP story reporting Jimmy Lai’s remarks about relaxing a bit when he realized the officers who arrested him were not speaking Mandarin, “since he was worried he could be sent to mainland China, where the legal system has fewer protections.” Of course, it is much too early to know whether Lai will indeed be sent to the mainland (he is currently out on bail). The system established by the National Security Law did not purport to restrict the role of the HK police but to enhance it by establishing a special local unit that operates under the guidance of mainland security specialists. It would have been inefficient, as well as unnecessarily incendiary, to have mainland police arrest Lai and the other suspects. Perhaps there were mainland advisor-observers among the 200-odd police who descended on the Apple Daily and other relevant premises. It will probably be a matter of weeks or months before a decision is made about whether the central authorities will complete the processing of the case or allow it to be completed by the HK Department of Justice’s special new prosecution unit and the specially convened local court (without a jury). Much will be determined by the evidence that has been seized as well as Beijing’s assessment of the likely impact on HK and the world community of the momentous decision to transfer Lai to the mainland for further interrogation, investigation, trial and sentencing.
At this point Beijing may be “crossing the river by feeling the stones.” Perhaps it will test the way toward central prosecutions by first sending suspects in other NSL cases to the Mainland. It is also quite likely that the adverse public reaction thus far will lead to Lai and others remaining in HK for final disposition. The fact that fraud is included among possible charges adds to the government’s options if NSL conviction should seem problematic, and fraud would be prosecuted locally unless inextricably linked to NSL activity.
Yet, if I were Lai’s HK counsel, I would be quietly consulting well-connected mainland lawyers about possible future contingencies, to the extent that mainland defense experts have been allowed to learn what the central authorities may have in mind for NSL processing. I don’t think that the Communist Party’s Political-Legal Commission (PLC) that controls the mainland prosecution, defense bar and courts will be available for consultation by defense counsel at this point, although experience demonstrates that the PLC will eventually not be shy in telling Lai’s defense lawyers what they can do and say and what they cannot!