Opinion | Apple Daily arrests: Criminal justice ensures fair outcomes for national security suspects

By Grenville Cross

After the editor-in-chief, publisher and three other executives of Apple Daily were arrested on June 17, the police explained that they were suspected of involvement in the publication of articles which violated the national security law. There had allegedly been over 30 articles published in the newspaper that sought foreign sanctions against Hong Kong and the country, and this could constitute an offense of colluding with foreign forces (Art.29). Although the National Security Law is not retroactive, nefarious activities prior to June 30, 2020 can provide the police with a handle on events thereafter, and, in the event of a prosecution, such evidence may be admissible to support charges under the "similar fact" doctrine.

According to the Secretary for Security, John Lee Ka-chiu, "the suspects tried to make use of journalistic works to collude with foreign countries or external elements to impose sanctions or take hostile action against Hong Kong and the central government". In light of this, the police obtained a court warrant before visiting the Apple Daily headquarters in Tseung Kwan O, which authorized them to search and seize journalistic material which may assist their investigations.

As always, the police operation triggered the customary knee-jerk reactions from the usual suspects. Without having studied either the law or the evidence, the British Foreign Secretary, Dominic Raab, claimed that the arrests "demonstrate Beijing is using the National Security Law to target dissenting voices, not tackle public security", and announced that press freedom "should be respected". Equally clueless, the US State Department's spokesman Ned Price also weighed in, demanding the "immediate release" of the suspects, presumably because he thinks some people are above the law. As this is not a notion to which the US subscribes at home, Price's request is simply another contemptible attempt to subvert Hong Kong's criminal justice system.

Eager not to be left out, the serial fantasist, Benedict Rogers, who is London-based and runs the anti-China propaganda outfit, Hong Kong Watch, declared "I love the Apple Daily and their courageous team". He disclosed that he writes for Apple Daily "every week", which seems remarkable, given the harm he has tried to cause China. He also disclosed that he had filed his latest op-ed with the newspaper only "last night".

Rogers then revealed himself in all his glory, calling on the "entire world" to cut their ties with the Chinese and Hong Kong governments. He even urged the international community to "be ready to take steps to punish officials responsible for targeting journalists, including using Magnitsky sanctions". This, of course, is fascinating, as the five arrests are intimately connected with the very issue of foreign sanctions which Rogers is yet again advocating. Indeed, he has long seen "Magnitsky sanctions" as the answer to everything of which he disapproves, and he now makes a living off the back of his anti-China campaigning. Given his obsession with sanctions, it is extraordinary, not to mention sinister, that Apple Daily has provided him with a regular platform to propagate his bile, and this also requires investigation.

Anybody wishing to understand the newspaper's ethos need go no further than its founder and Next Digital owner, Jimmy Lai Chee-ying. On August 28, 2019, when interviewed by CNN, he pinned his colors to the mast for his staff, and everybody else, to see. He announced that "we in Hong Kong are fighting for the shared values of the US against China, we are fighting their war in the enemy camp". Although Lai did not explain if the insurrection launched by the protest movement and its armed wing in 2019 was a part of the "war" he was "fighting", he was clearly in cahoots with the US. With leadership like this, it should surprise nobody that a cloud of suspicion has now also descended on his subordinates.

What, however, Raab, Price and Rogers need to understand is that, as in other common law jurisdictions, the police force is required to investigate information they receive about the commission of a crime, unless it is frivolous or false. But before they can arrest anybody, they are legally required to have a "reasonable suspicion" that a suspect is involved in an offense, otherwise the arrest may be unlawful. Having interviewed the suspect and completed outstanding investigations, they may decide that the case can be taken no further, and that will be it.

If, however, the police consider there is, or may be, enough evidence to prosecute a suspect, legal advice will normally be sought from the Department of Justice, on the way forward. In making their decision, prosecutors exercise the constitutional independence conferred upon them by the Basic Law (Art.63). Contrary to Raab's slur, Beijing plays no role in public prosecutions, and prosecutors will only allow a case to proceed if the evidence suffices. This, of course, is the purest common sense, as they will not authorize a prosecution that is deficient in evidence or weak in law, as it will collapse once tested at trial, which is the last thing they want to see.

On June 18, it was revealed that two of the five suspects, the editor-in-chief, Ryan Law Wai-kwong, and the publisher, Cheung Kin-hung, had been charged with conspiracy to endanger national security, and that proceedings were also being initiated against three associated companies. Although these may only be holding charges, enabling the police to get a handle on the case, it is more likely, given the sensitivity, that legal advice will have been sought first. But whichever it is, prosecutors will need to process the case with their customary professionalism, and more, given that journalistic activity is involved.

Although freedom of speech, of the press and of publication are protected by the Basic Law (Art.27), these are not absolute rights. As the International Covenant on Civil and Political Rights makes clear (Art.19), limitations on the right to receive and impart information are permissible provided this is done by law and is necessary, for example, "for the protection of national security". Any restriction must also be proportionate, in the sense of being a reasonable response to the danger which it is sought to contain.

These same protections, moreover, are, for the avoidance of doubt, specifically incorporated into the National Security Law for Hong Kong (Art.4). It stipulates that "the freedom of speech, of the press, of publication", as contained in the city's constitutional instruments, "shall be protected in accordance with the law". For these assurances to be cast in stone like this, at the very outset of the National Security Law, is profoundly reassuring for the public, and particularly for journalists. However, these rights can never be relied upon to justify activities involving collusion with outsiders to harm the city, the country or their officials.

If prosecutors conclude that there is sufficient evidence to prosecute a suspect, the Prosecution Code (2013) requires them to consider if it is in the public interest to prosecute (Para.5.3). Indeed, the Criminal Procedure Ordinance (Cap.221) states that "the Secretary for Justice shall not be bound to prosecute an accused person in any case in which he may be of opinion that the interests of justice do not require his interference" (Sect.15). Instances where the public interest can properly be invoked to preclude a prosecution can readily be imagined.

It may, for example, not be in the public interest to prosecute a publication which has transgressed if its actions have resulted in a criminal offense being discovered, or in a miscarriage of justice being exposed, or in a failure by somebody to discharge a legal obligation to which he or she is subject being revealed. If, however, a particular journalistic activity has imperiled national security, it is hard, if not impossible, to conceive of circumstances in which it would ever be in the public interest not to prosecute the suspect, evidence permitting. While triviality of offense can be a reason for not prosecuting a suspect, there is nothing minor about behavior endangering national security.

There are, quite clearly, limits to freedom of the press, as there are to other freedoms, and, if the mark is overstepped, nobody should be surprised if there are consequences. In Hong Kong, everybody is equal before the law, and those who flout it must expect to be prosecuted, even if they are privileged or well-connected. If anybody at Apple Daily thought they were above the law, or that people like Raab and Price would save their bacon, they may be in for a rude awakening.

If, however, the green light is given for prosecution, the suspects will only be convicted if prosecutors can establish guilt "beyond reasonable doubt". At court, the suspects will enjoy the fair trial guarantees enshrined in the National Security Law (Art.5), including the presumption of innocence, legal certainty, and the rights of defense. Although Price and Rogers are not lawyers, Raab is, and he should understand all this.

In order, therefore, to avoid exposing himself to further ridicule, Raab should now read the National Security Law, study the criminal justice system and brush up on the Sino-British Joint Declaration of 1984, which he consistently misrepresents. After that, he will hopefully be able to explain things clearly to Price and Rogers, although their blind prejudice, like his own, will not be easy to overcome.

The author is a senior counsel, law professor and criminal justice analyst, and was previously the Director of Public Prosecutions of the Hong Kong SAR.

(Source: China Daily)

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