It was hardly unexpected — the conviction of Jimmy Lai Chee-ying, owner of the Apple Daily, on two counts of fraud, his sentence of 5 years and 9 months imprisonment and a fine of HK$2 million ($256,850), immediately drew criticism from the West. But what had not been expected was that the US Department of State spokesman, Ned Price, would link the conviction to “freedom of expression”! While commenting on the conviction, he said, “The US government appealed to the central government to respect freedom of expression, including freedom of the press, in Hong Kong!”
This makes one wonder if Price had done his homework before issuing his acerbic statement because Lai’s conviction had absolutely nothing to do with freedom of expression or press freedom. Even the press reports on the trial did not seem to mention that his international defense team had used such lofty aspirations in his defense.
In Price’s twisted logic, presumably if heroin had been found in Lai’s office and he had been convicted of drug offenses, Hong Kong should still have been criticized for breach of press freedom, simply because Lai was running an anti-establishment newspaper.
This, not surprisingly, drew an immediate response from the Office of the Commissioner of the Ministry of Foreign Affairs of the People’s Republic of China in the Hong Kong Special Administrative Region, accusing Price of attempting to “whitewash criminals”!
ALSO READ: HKSAR govt: US state dept disregards facts over Lai ruling
It said it strongly disapproved of and firmly rejected “irresponsible comments” on the Lai case made by Price and a few US members of congress. A spokesman for the Office said the rights of the people of Hong Kong were fully protected, but insisted rights and freedoms could not be used as an “immunity passport for lawbreakers, or a privilege for anti-China forces”.
The failure to disclose Dico Consultants’ operations to the landlord amounted to deliberate concealment and was a fraudulent act that went beyond what would typically be a civil breach of contract. This fraudulent scheme enabled Dico Consultants to evade land premiums of up to HK$110 million
The Hong Kong Special Administrative Region government also condemned the US for ignoring the facts of the case to make “inaccurate and misleading” statements which also interfered with a fair trial.
Human Rights Watch condemned Lai’s case as having comprised of “trumped-up charges”, adding, “it’s clear what Beijing’s intentions are”! Again, did they not bother to do their homework to ascertain the facts of the case?
Those facts are actually quite straightforward. In April, 1998, Lai’s media firm, Next Digital, rented a piece of land for the newspaper’s headquarters in Tseung Kwan O Industrial Estate from the landlord, Hong Kong Science and Technology Parks Corporation (HKSTPC), a public corporation, at a preferential and very low land premium.
The HKSTPC had specifically stated in the lease the prohibition on using the space for anything other than for publication purposes and related services. However, for 17 years, Lai had allowed his private firm, Dico Consultants Ltd, and its staff to occupy an office on the premises without disclosing this to the HKSTPC.
ALSO READ: Jimmy Lai jailed for 69 months over lease violation
The failure to disclose Dico Consultants’ operations to the landlord amounted to deliberate concealment and was a fraudulent act that went beyond what would typically be a civil breach of contract. This fraudulent scheme enabled Dico Consultants to evade land premiums of up to HK$110 million.
As the landlord in this case is a public corporation owned by the government, this huge loss has had to be borne by the public.
The case was heard openly in the District Court before Judge Stanley Chan Kwong-chi, and the entire trial, including the presentation of all evidence, was open to the public. One of the main prosecution witnesses was Next Digital’s former chief financial officer and chief operating officer, Royston Chow Tat-kuen, who was granted immunity in return for giving evidence against Lai.
He confirmed in court Lai’s personal knowledge of and involvement in this private firm, and provided important incriminating details, such as the fact that Dico Consultants’ name was never displayed on the lobby’s directory, indicating a deliberate act to hide its existence within Lai’s headquarters.
ALSO READ: Commissioner's office refutes US state dept remarks on Lai ruling
In addition, the landlord, HKSTPC, had over the years conducted site inspections every 6 months, but the existence of Dico Consultants’ was never revealed — another deliberate act to hide its illegal presence.
Indeed, the judge also criticized the incompetent manner in which the HKSTPC’s inspections were conducted. In view of the judge’s comments, perhaps the ICAC should consider looking into the case to ascertain if there might have been some form of corrupt collusion at work behind these inspections.
In convicting Lai, the judge said he had played a significant role in deceiving the landowner under the cover of a “fairly sizable and reputable” news outlet. This was a fraudulent act which was planned and organized, spanning many years. He also dismissed the alleged link between the media owner’s prosecution and press freedom as attempts to “poison the well”
In convicting Lai, the judge said he had played a significant role in deceiving the landowner under the cover of a “fairly sizable and reputable” news outlet. This was a fraudulent act which was planned and organized, spanning many years. He also dismissed the alleged link between the media owner’s prosecution and press freedom as attempts to “poison the well”.
Fraud is punishable by up to 14 years in jail. The judge said there were a number of aggravating factors to justify a severe sentence. First, the offense covered a long period of 17 years; second, Lai derived huge economic benefit from the fraud; third, Lai had apparently taken advantage of his news outlet to provide a protective cover for the existence of the private firm, believing that few people would dare to interfere; fourth, this might not be an isolated case, as at least 10 private firms were moved from the site immediately after this case attracted the attention of the media; fifth, the case involved not just a single offender but the conspiracy of a syndicate of offenders; and sixth, Lai’s staff had deliberately misled the HKSTPC’s inspection teams.
ALSO READ: HKSAR govt strongly objects to so-called US 'report'
He therefore set the sentencing starting point at 6 years of imprisonment before reducing it to 5 years and 9 months for a variety of mitigating factors. The sentence is fair, particularly in view of the huge loss to the public in terms of land premium revenue.
In any event, if Lai is aggrieved, he can always appeal to the High Court’s Court of Appeal and even to the Court of Final Appeal, which is presided over by a panel of judges — including a reputable foreign judge — so there is no basis to suggest that he did not have a fair trial.
After the trial, Lai’s son openly criticized the verdict and called for the UK government to take immediate action to set his father, who is a British national, free. It’s really amazing that there are still people in Hong Kong who believe that foreign nationals are entitled to privileged treatment before the courts in Hong Kong, and are above the law! In a way, he is simply exposing to the world his father’s identity as an agent and a pawn of the West!
The author is an adjunct professor of HKU Space and Council member of the Chinese Association of Hong Kong and Macao Studies. He retired as deputy commissioner of ICAC.