The Takeaway
On December 15, Jimmy Lai, a leading voice in Hong Kong’s pro-democracy movement and an influential media tycoon (and Ontario hotelier), was found guilty of collusion with foreign forces under the Beijing-imposed National Security Law (NSL) and colonial-era law, in addition to sedition. The decision, rather than offering reassurance that “business as usual” continues in Hong Kong, reinforces concerns that the city’s legal independence, protected under the ‘One Country, Two Systems’ framework, is eroding.
In Brief
- Following a 156-day trial that began in 2023, Jimmy Lai, founder of the now-shuttered pro-democracy outlets Apple Daily and Next Magazine, was found guilty of two counts of conspiracy to collude with foreign forces and one count of sedition. Three judges presided over his case at the Hong Kong High Court.
- The charges were based on a colonial-era sedition law in Hong Kong’s Crimes Ordinance and the controversial NSL imposed on Hong Kong on June 30, 2020. China's Central People’s Government enacted the NSL to quell citywide political protests that began in 2019.
- While hundreds have been arrested and dozens convicted under the NSL and the resurrected sedition law, this is the first case considering the crime of collusion.
- Lai, who is 78 and a British citizen, has been in detention since December 2020. Sentencing is anticipated to take place in January 2026; Lai faces up to life in prison.
Implications
When Hong Kong’s sovereignty transferred from British rule to the People’s Republic of China in 1997, the city was promised a high degree of autonomy, including separate legal and economic systems. However, Lai’s conviction reinforces long-standing concerns, including those raised by Canada, about the erosion of the ‘One Country, Two Systems’ framework and the rights and institutions it was meant to protect. It is reasonable and expected that countries will take steps to protect national security. But restrictions on rights, particularly freedom of expression, must be legal, necessary, and proportionate, and implemented through the least intrusive means available. It is surprising, in its first consideration of collusion under the NSL — a charge directly affecting freedoms of association and expression — that the court offers no analysis, in its 855-page decision, on how to strike this balance. These concerns are compounded by the court’s portrayal of everyday journalistic activities, articles on awards, the reprinting of speeches, and sanctions lists from other media outlets as evidence of incitement of hatred. Moreover, despite repeated assurances that Lai was not prosecuted for his political beliefs, nearly one-third of the judgment focuses on analyzing his political stance, revealing tensions in the court’s stated intent and reasoning.
The Hong Kong government pledged that the NSL would not be retrospective (i.e. criminalizing conduct that was not criminal before the law was enacted), and the court repeatedly stated that Lai was not tried for his actions prior to the NSL. Nevertheless, a substantial portion of the judgment focuses on Lai’s actions before June 30, 2020. Such reasoning raises concerns that the law was, in practice, being applied retrospectively — a clear departure from common law principles and the government’s own pledge.
The classification of collusion as a “crime of action” rather than a result — found in paragraph 59 of the decision — coupled with the failure to define “hostile” activities, grants courts sweeping discretion to criminalize conduct carrying penalties of up to life imprisonment. When combined with the court’s emphasis on potential (rather than actual) economic impacts as national security threats, the ruling elevates risk for companies whose activities may affect the Hong Kong economy. This approach sits in tension with government assurances that the NSL would not preclude communications between a Hong Kong resident with others overseas.
The result of the Lai’s conviction is heightened legal uncertainty, with far-reaching consequences for political expression, advocacy, and cross-border economic activity involving Hong Kong. Despite Hong Kong’s efforts to cast developments as ‘business as usual,’ the city’s system seems to be moving closer to the system in the People’s Republic of China. Relative predictability remains for purely commercial matters, but cases touching politically sensitive issues are diverted into a securitized, discretionary process that departs from Hong Kong’s history of judicial independence.
What’s Next
- 1. Lai’s long odds
While it is likely Lai will appeal the decision, the chances of success are limited. Findings of fact are rarely overturned on appeal, and judges considering cases under the NSL are given a broad degree of discretion.
- 2. Verdict could fray ties between China, West
This verdict will prove a test for China's diplomatic relationships. On December 17, G7 members issued a joint statement condemning the verdict, expressing concern about the deterioration of rights and freedoms in Hong Kong. Earlier condemnation of Lai’s political persecution and calls for his release by the Government of Canada have been criticized by the Chinese embassy in Ottawa as irresponsible and an interference in China’s internal affairs.
- 3. Risk management
Organizations continuing operations in Hong Kong should be mindful and adapt to Hong Kong's more restrictive approach to speech and information-sharing, while ensuring the protection of sensitive material.
• Edited by Ted Fraser, Senior Editor, APF Canada
