HONG KONG, CHINA: ARBITRARY DETENTION OF JIMMY LAI CHEE-YING

The International League Against Arbitrary Detention urges the Government of Hong Kong, China to take all the necessary actions to implement the United Nations Working Group on Arbitrary Detention Opinion No. 34/2024 concerning Jimmy Lai Chee-ying, asking the Government to immediately and unconditionally release him and to accord him an enforceable right to compensation and other reparations in accordance with international law.

Read the full WGAD Opinion concerning Jimmy Lai Chee-ying: Opinion No. 34/2024.

ARREST OF PRO-DEMOCRACY CAMPAIGNER

Jimmy Lai Chee-ying is an elderly citizen of the United Kingdom of Great Britain and Northern Ireland who was residing in Hong Kong, China. He is the founder of several companies including Next Digital Ltd. and Apple Daily, a popular Chinese language newspaper. He is also a pro-democracy campaigner.

Mr. Lai was arrested at his home on several occasions in 2020 by the police because he allegedly organized, incited and participated in unauthorized public assemblies in 2019 and 2020 and published articles containing his political opinions. On August 10, the offices of Apple Daily were also raided by over 200 police officers. On December 2, 2020, his bail was revoked by the police, which was confirmed the next day by a judge. He was later, on December 11, 2020, charged under the National Security Law. On December 23, he was released on bail amounting to house arrest but returned to prison on December 31, 2020, after the prosecutor was granted leave to appeal his house arrest. He now has served four sentences of imprisonment and since September 2022, he is detained in solitary confinement in a maximum-security prison facing charges under the National Security Law.

The Working Group transmitted the allegations to the Government of China, which chose not to respond.

SUBJECT TO PRE-TRIAL DETENTION WITHOUT AN INDIVIDUALIZED DETERMINATION

The Working Group recalled its own jurisprudence and the one of other UN bodies about the exceptional status of pre-trial detention and that it must be based on an individualized determination. The government failed to justify Mr. Lai’s pre-trial detention. Furthermore, the Working Group accepted the source’s submission regarding the National Security Law removing the presumption of bail because of its vague wording. It also echoed the concern of the Human Rights Committee which said that article 42 of that same law introduced a more stringent threshold for bail in national security cases than in other cases, which created a presumption against bail for those charged under it.

Hence, the Working Group found that Mr. Lai’s pretrial detention was not properly constituted in violation of article 9 (3) of the Covenant. Thus, his deprivation of liberty qualified as arbitrary under category I.

DETAINED FOR EXERCISING HIS RIGHT TO FREEDOM OF EXPRESSION AND PEACEFULL ASSEMBLY

According to the source, Mr. Lai was detained for his participation in peaceful demonstrations and his exercise of his right to freedom of expression as protected by articles 19 and 21 of the Covenant. The Working Group accepted that the prosecutions as well as the other proceedings against Mr. Lai, such as the freezing of his assets and the liquidation of his company, were intended to prevent him from exercising his aforementioned rights.

The source also argued that the sentences were disproportionate as no sentencing guidelines were available for charges involving unauthorized assemblies. The working Group recalled the principle of legality and showed concerns regarding the proportionality of the sentences, specifically as the matter should ordinary be dealt in civil proceedings and not criminal ones.

Finally, the source raised concerns regarding the National Security Law and argued that it is vague, imprecise and unclear regarding the expression of political opinions leading to infringements of the rights to freedom of opinion and expression and of peaceful assembly. The Working Group found the Law as lacking clarity and precision and recalled the concerns expressed by the Human Rights Committee about this legislation.

Noting all the above, the Working Group concluded that Mr. Lai’s detention was arbitrary within the meaning of category II, violating article 19 and 21 of the Covenant.

NO TRIAL BEFORE COMPETENT, IMPARTIAL TRIBUNAL, NO ACCESS TO LEGAL ASSISTANCE OF CHOICE, TIME OR FACILITIES TO PREPARE THE DEFENSE

The source pointed out that under the National Security Law, the independence of the judiciary is not insured. The Working Group shared its concerns regarding the appointments of judges under this law but also regarding their power to declare to the courts an act as involving national security or declare evidence as State secret. Thus, the Working Group considered that Mr. Lai’s right to an independent and impartial tribunal was violated based on article 14 (1) of the Covenant.

Furthermore, the source stated that lawyers defending clients targeted by the National Security Law fear that they will be targeted by the authorities under that same law. In fact, Mr. Lai’s counsel was barred from representing him. The Working Group referred to the Human Rights Committee’s observations regarding this situation in Hong Kong. In that light, the Working Group considered that Mr. Lai’s right to present an effective defense through counsel of his choosing and right to adequate time and facilities for the preparation of his defense were violated under article 14 (3) (b) and (d) of the Covenant.

In addition, the Working Group referred the case to the Special Rapporteur on the independence of judges and lawyers for further action.

The Working Group therefore concluded that Mr. Lai’s detention was arbitrary under category III.

DETENTION BASED ON POLITICAL AND OTHER OPINIONS

The source attempts to show that Mr. Lai’s political opinions and status were at the center of the proceedings against him were accepted by the Working Group. It submitted that it was part of an emblematic pattern of the misuse of the judiciary to justify repercussions against journalists, publishers, human rights defenders and political opponents in Hong Kong. Furthermore, it recalled that Mr. Lai was often victim of acts of intimidation to silence him, including the petrol bombing of his home and workplace. Lastly, Mr. Lai’s influence could not be a justification for his prolonged detention, and it appeared that the sentencing remarks of the judge in the assembly and protest cases clearly revealed discrimination in regard to him being a “well-known figure” and an “influential” person. For those reasons, the Working Group considered that Mr. Lai’s deprivation of liberty on the ground of his political opinions and activism constituted a violation of articles 2 (1), 9 and 26 the Covenant.

Hence, the Working Group found Mr. Lai’s deprivation of liberty to be arbitrary under category V.

CONCLUSIONS OF THE UN WORKING GROUP AGAINST ARBITRARY DETENTION

In light of the foregoing, the United Nations Working Group on Arbitrary Detention considered that the detention of Jimmy Lai Chee-ying was arbitrary and fell under categories I, II, III and V because his deprivation of liberty was in contravention of articles 2, 9, 14, 19, 21 and 26 of the International Covenant on Civil and Political Rights.

The Working Group recommended that the Government of Thailand take the necessary steps to remedy the situation of Jimmy Lai Chee-ying without delay and bring it into conformity with the relevant international norms. The Working Group considered that, taking into account all circumstances of the case, the appropriate remedy would be to release him immediately and accord him an enforceable right to compensation and other reparations, in accordance with international law.

The Working Group also urged the Government to ensure a full and independent investigation of the circumstances surrounding the arbitrary deprivation of liberty of Mr. Lai and to take appropriate measures. Lastly, it requested the Government to bring its laws into conformity with the recommendations of the opinion.