HKSAR v. LAI CHEE YING AND OTHERS

Press Summary (English)

Press Summary (Chinese)

HCCC 51/2022

[2025] HKCFI 6291

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 51 OF 2022

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R E A S O N S    F O R    V E R D I C T

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Table of Contents

Introduction.

Chapter 1 – The Charges

Chapter 2 – Relevant Legal Principles

Conspiracy.

The offence of “collusion”.

The offence of “sedition”.

Corporate criminal liability – the directing mind.

Taking of judicial notice.

D1’s no-case submission.

Chapter 3 – The Defendants

Introduction.

NDL..

Apple Daily Limited (D2)

Apple Daily Printing Limited (D3)

AD Internet Limited (D4)

Chapter 4 – Accomplice witnesses

Cheung Kim-hung.

Chan Pui-man.

Yeung Ching-kee.

Li Yu-hin (“Andy”)

Chan Tsz-wah (“Wayland”)

Chow Tat-kuen (“Royston”)

Chapter 5 – Apple Daily.

Print Form and Digital Form..

Chapter 6 – Senior Management of Apple Daily.

Cheung Kim-hung’s role in Apple Daily.

Senior Management of Apple Daily.

Chapter 7 – D1’s political stance and its influence on Apple Daily.

D1’s stance on US-Taiwan relationship.

D1’s views and stance regarding Hong Kong.

Chapter 8 – Meetings in Apple Daily.

Overall workflow..

Lunchbox meetings

Slack records

Chapter 9 – Apple Daily’s Charter and editorial independence.

Apple Daily’s Charter.

The stance of Apple Daily.

Chapter 10 – The Editorial (「蘋論」) and Apple Forum（「蘋果論壇」）  

Introduction.

The Editorial

Examples from the Editorial

Apple Forum..

Columnists of Apple Forum..

Chapter 11 – Instances of D1 giving editorial directions

Speech of Consul General Kurt Tong.

Meeting between Anson Chan and Pence.

D1 commenting on Apple Daily’s headline.

Lam Wing-kee’s departure for Taiwan.

Protest on 28 April 2019.

Materials provided to Chan Pui-man on 4 June 2019.

Protest on 9 June 2019.

Benedict Rogers’ hunger strike.

Protest on 16 June 2019.

Apple Daily’s financial support for anti-ELAB movement

Suspension of ELAB and the publication of “anti-authoritarianism June” 

Storming of LegCo.

Article by Lester Shum..

D1’s interview by Albert Ho.

Video talks

Sympathetic reporting of protests

“Support the Student Subscription Plan”.

“Support Small Shops”.

“One Hongkonger, One Letter to Save Hong Kong”.

Not to go against Trump.

Chapter 12 – D1’s articles

Introduction.

The anti-ELAB movement

Anti-authoritarianism Movement

Covid-19 pandemic and the resistance movement

After the NSL..

Chapter 13 – D1’s tweets

Introduction.

Simon Lee.

Dinner gathering at D1’s residence.

The content contributors

Samples of the tweets before the NSL..

1 July 2020.

Simon Lee leaving Hong Kong.

Tweets after the NSL..

D1’s strategy for the NSL..

Chapter 14 – “Live Chat with Jimmy Lai”.

Introduction.

The purpose of the live chat

The involvement of Apple Daily.

D1’s stance and extracts from the episodes

Worry of the staff of Apple Daily.

Chapter 15 – “English News”.

Introduction.

Reasons for “English News”.

The stance of “English News”.

Selection of articles for “English News”.

Mark Simon and Mark Clifford.

Benedict Rogers, Hack Hazlewood and Luke de Pulford.

Fung Wai-kong joining.

The launching of “English News”.

What D1 wanted to do with “English News”.

Chapter 16 – D1’s activities and conduct

Introduction.

D1 and Taiwan.

D1’s request for Tsai Ing-wen’s statement on ELAB..

D1 seeking Chris Patten’s assistance.

D1’s speech at FCC..

D1’s article in Wall Street Journal

D1’s visit to US in July 2019.

D1 arranging a “fact-finding” visit by US congressmen.

Visit by Rick Scott

Visit by Ted Cruz.

D1’s US trip in October 2019.

The 2019 District Council Election and Independent Electoral Observation Mission (“EOM”)

D1 seeking for a leadership group.

D1’s response to the Hong Kong Human Rights and Democracy Act (“HKHRDA”)

D1’s discussions with others on the “Magnitsky Act”.

“One Hongkonger, One Letter to Save Hong Kong”.

D1’s messages in “DC Dems” chat group.

D1 giving publicity to “Pompeo meeting Tiananmen Survivors”.

D1’s intended US trip and application to lift travel restriction.

D1’s speech at the 25th anniversary of Apple Daily.

D1’s enquiry about sanction list

The NSL promulgated.

D1’s knowledge of and response to the NSL..

D1’s change of stance on Hong Kong’s special status after the NSL..

Trump’s Executive Order.

Apple Daily reporting of the revocation of Hong Kong’s special status and the “US Sanction List”.

D1 received beforehand Pompeo’s speech at Nixon Library.

D1’s tweet on 8 August 2020 about Returning Officers

Intended private prosecution of expatriate police officers

D1 helping Yuen Gong-yi regarding his video letter to Trump.

D1’s interviews by Fox.

Chapter 17 – Senior Management’s Response to the NSL..

Introduction.

The NSL approaching.

“NSL Response Committee”.

After the NSL had arrived.

Contingent Group (「應變小組」)

Not inviting Sang Pu (桑普)

Cheung Kim-hung’s speech on 11 May 2021.

Chan Pui-man’s appointment as director.

Chapter 18 – Advertisement/ Crowdfunding campaigns & SWHK..

Advertisement/Crowdfunding campaigns

“Fight for Freedom. Stand with Hong Kong. 重光團隊” (“SWHK”)

Chapter 19 – Andy’s association with Wayland  and international lobbying 

Introduction.

Mark Simon suggested Andy & Wayland engaging in lobbying.

Andy’s visit to OHCHR..

Visit by Bob Seely MP.

Andy’s meeting with Senator Rick Scott

Election Observation Mission (“EOM”)

Andy’s visit to US.

Video conference with “Mutual Destruction Bro” and “T”.

Lobbying relating to Japan.

Inter-Parliamentary Alliance on China (“IPAC”)

IPAC’s responses to the NSL..

Japanese Parliamentary Alliance on China (“JPAC”)

Andy’s decision to continue in spite of the NSL..

Andy’s arrest

D1’s arrest

Arrangement for Andy to flee.

Other documents found in Andy’s computer.

Cross-examination about Mark Simon.

Chapter 20 – D1’s association with Wayland.

Introduction.

First Meeting with Mark Simon.

Martin Lee mentioning Wayland to D1.

D1 sponsoring Wayland’s exhibition of newspaper cuttings

First meeting with D1.

Second meeting with D1.

The Hong Kong Human Rights and Democracy Act (“HKHRDA”)

The riots at CUHK and Poly University.

The 2019 District Council Election.

Third meeting with D1.

Second meeting with Mark Simon.

Lacock given to Wayland as reward.

D1 asking to meet “Mutual Destruction Bro” (「攬炒巴」)

Fourth meeting with D1.

Fifth meeting with D1.

Updates for D1 after the Taiwan Trip.

Mark Simon helping to resolve argument in SWHK US front

D1 kept informed of development of publicity literature.

Wayland updating D1 on primary election.

D1 forwarding to Wayland messages about US stance on sanction.

Wayland updating D1 on the “international front”.

Third meeting with Mark Simon.

D1 asking Wayland to persist despite the forthcoming NSL..

Sixth meeting with D1.

Hong Kong Safe Harbor Act and HKDC..

Wayland joining SWHK US front

Wayland thanking D1 for the primary election.

Chapter 21 – D1’s knowledge of IPAC..

D1’s knowledge of IPAC..

Chapter 22 – D1’s arrests

Introduction.

First arrest of D1.

Second arrest of D1.

Cheung Kim-hung’s visits to D1 in December 2020.

Chapter 23 – Mark Simon.

Introduction.

How D1 said he and Mark Simon met

D1’s trust in Mark Simon.

Wayland’s evidence.

Wayland’s meetings with Mark Simon.

Wayland’s post-NSL communication with Mark Simon.

Wayland’s post-arrest communication with Mark Simon.

Chapter 24 – Assessment of PWs

Introduction.

Prosecution witnesses from Apple Daily.

Prosecution witnesses on Count 3.

Chapter 25 – Adverse measures by foreign countries

Introduction.

The relevant US legislations and measures

Adverse measures taken by the US.

Suspension of extradition agreements by foreign countries

Chapter 26 – Summary of D1’s Personal background and his case.

D1’s personal background.

Founding of Next Magazine and Apple Daily.

A businessman and social activist

Apple Daily.

Taking up the position of Executive Chairman of Next Digital on 25 May 2020 

Editorial Directions

English News

D1’s foreign connections

D1’s case.

Evidence of Andy.

Evidence of Wayland.

Chapter 27 – Assessment of D1’s evidence.

Taiwan Consultancy.

D1’s denial that there were prearranged meetings between D1 and US officials in July 2019 before he arrived in Washington DC..

D1’s denial that he had asked for sanctions when he went on the US trip in July 2019 

D1’s denial that his live chat programme was his own programme and had nothing to do with Apple Daily.

Elmer Yuen Gong-yi’s video letters to President Donald Trump and Secretary Pompeo 

D1’s sole purpose of meeting with Wayland.

D1’s sole purpose of meeting Mutual Destruction Bro (Finn Lau)

D1’s knowledge about IPAC..

D1’s knowledge of Stand With Hong Kong (SWHK)

D1’s deliberate concealment of planned meeting with US officials in July 2020 in his bail application to the Court to uplift his travel restriction.

D1’s case that he was not asking for sanctions or making requests for SBHA after NSL 

Chapter 28 – D1’s foreign connections

UK Line.

Taiwan Region.

US Line.

Donations to Political Parties in Hong Kong.

Donation to US Think Tanks in the US.

D1’s knowledge and belief that the US administration was aware and was listening to him..

D1’s intent to solicit foreign intervention and or the imposition of SBHA against China PRC and HKSAR as far back as 2017.

Post-Trip Discussions between D1, Jack Keane and Paul Wolfowitz.

After the promulgation of the NSL.

The involvement of Jack Keane and Paul Wolfowitz.

D1’s denial of payment to others to influence foreign policy.

Payments to Jack Keane and Paul Wolfowitz for the Taiwan Consultancy by Mark Simon using D1’s personal funds and amount decided by Mark Simon.

Payment to Antonio Chiang despite not working for Apple Daily or Next Magazine but as the right hand man of Tsai Ing-wen.

The amendment to the Fugitives Offenders Ordinance.

D1’s collaboration with James Cunningham for Anson Chan Fan On-sang and pan-democrats lobbying trip to US in 2019.

D1 paid James Cunningham to influence foreign policy on Hong Kong and PRC 

“Martin, Jimmy and Mark” WhatsApp group.

D1’s US Trip to meet US officials in July 2019.

D1’s belief that Mary Kissel sent her advice via Mark Simon to D1 before he met Mike Pompeo in July 2019.

Berlin Analogy of Mary Kissel repeatedly adopted by D1.

Mark Simon arranged for D1 to meet the US senior officials

D1’s denial that he had asked for sanctions when he went on the US trip in July 2019 

D1’s advice from Bill McGurn.

D1 advocated for more severe sanctions against the children of CCP officials in August 2019.

Fact finding Trip for US Senators and Congressman to come to Hong Kong 

D1’s US trip in October 2019.

From July 2019 until after the promulgation of the NSL D1 sought actions and not words when requesting for foreign support

D1’s evidence that when he received a message from Mary Kissel conveyed by Mark Simon he did not respond or reply through Mark Simon.

D1’s intended visit to the US in July 2020 after the promulgation of the NSL 

D1’s deliberate concealment of planned meeting with US officials in July 2020 in his bail application to the Court to uplift his travel restriction.

D1’s denial of knowledge or belief that Mark Simon was closely connected to the US administration and the National Security Council (NSC)

WhatsApp Group called DC Dems

D1’s ongoing pursuit of his appeals for SBHA after the NSL..

Chapter 29 – Factual findings and verdicts

Introduction.

Findings relating to Count 1.

Findings relating to Count 2.

Liability of the Corporate Defendants on Counts 1 and 2.

Findings relating to Count 3.

Concluding remarks

Verdicts

Annex 1

Introduction

1.  This is a case mainly on one man at its core. He is Jimmy Lai Chee-ying (“D1”).

2.  To understand the man, we have to return to the beginning. According to D1, he was born into a well-to-do family in Mainland China in 1947. Due to the political unrest in the People’s Republic of China (“PRC”) at that time, his family lost its fortune and was broken up. His mother was sent to a labour camp and at the age of about 10 years old he had to find work in order to earn some money to feed his siblings. He worked as a porter at a train station and at the age of 12 he smuggled himself into Hong Kong at the bottom of a fishing boat.

3.  His story was truly a rags to riches success story and by dint of his hard work and determination he eventually built a very successful textile business. After he sold it, he decided to go into the media business by setting up Apple Daily. As he told Father Sirico in a live chat program, he found it boring being a business man and the media business gave him a reason to fight which he loved.

4.  D1 was no doubt a very savvy business man and it is unfortunate that his deep resentment and hatred for the Chinese Communist Party (“CCP”) led him down a thorny path leading to his trial today.

5.  Apple Daily was set up in 1995 and became a popular tabloid newspaper in Hong Kong known for its paparazzi and its reports on the entertainment industry. He also set up Apple Daily Taiwan a few years after setting up Apple Daily Hong Kong.

6.  Shortly after the Occupy Central Movement in 2014, D1 became more active in making editorial policies and used Apple Daily to encourage people to seek for democracy and to take to the streets to put up resistance. This watershed moment was when Apple Daily “metamorphosed” into a newspaper that opposed the HKSAR and the PRC Government. From this time on, according to the senior management of Apple Daily, D1 wanted the newspaper to print the news with this “yellow” slant. There is nothing wrong with having an editorial slant but it will be seen from the evidence it went far beyond that premise.

7.  D1 surrounded himself with like-minded individuals who were also keen on tearing down the CCP. First and foremost, there is the mysterious character, Mark Simon, whom he met in church and who quickly gained his trust to become his right hand man and confidante. Although D1 asserted in Court he did not know much of Mark Simon’s background apart from the fact that he used to work for a shipping company in Taiwan and was a member of a group in Hong Kong called The Republican Charter, he gave Mark Simon what appeared to be carte blanche to his money and management of some of his companies.

8.  The stage was thus set amidst this background and the evidence will reveal what happened in the management of Apple Daily and how D1 was positioning Apple Daily to reflect anti-CCP views and later anti-PRC and anti-HKSAR views. D1 was also writing articles in his column “Sink or Swim, Smile” in Apple Daily poisoning the minds of his readers and invited writers to write in Apple Daily who also made venomous assertions against the PRC.

9.  D1 at this time was also thinking geopolitically and was keen to enlist Taiwan as a leverage against the PRC. So in early 2017, D1 advocated for a greater US military presence in Taiwan to use it as a leverage against the PRC. Thus, D1 hired Jack Keane, a retired US general, and Paul Wolfowitz, a former US Deputy Secretary of Defense, to advise Tsai Ing-wen, the then leader of the Taiwan region for a period of two years which in our Verdict is referred to as the “Taiwan Consultancy”. D1 paid vast sums in remuneration to Jack Keane and Paul Wolfowitz to advise Tsai to recruit retired US army generals to upgrade its military and technology, amongst other things. The coordinator for this project was Mark Simon and D1 kept a close eye on it through Mark Simon and Antonio Chiang, a right hand man of Tsai and a former Apple Daily Taiwan employee.

10.  D1’s anti-China sentiment was also evident when he told his senior colleague (Cheung Kim-hung) in Apple Daily that he wanted to garner the attention of the Western Countries to act against the HK and Central authorities and impose sanctions on their officials. In pursuit of this agenda D1 also asked Mark Simon to engage James Cunningham, a former US consul in Hong Kong, to lobby for actions against the HKSAR in Washington. Subsequently, Cunningham informed D1 that the US would react strongly to the implementation of the Hong Kong National Security Law (“NSL”).

11.  As can be seen in the evidence, D1 was obsessed with changing the CCP’s culture and values to one of western values and make China subservient to the might of the US and the West, turning China into a lackey of the West.

12.  D1 believed that the Extradition Law Amendment Bill (“ELAB”) introduced in 2019 was a conspiracy between the CCP and the HKSAR deliberately designed to send opponents like himself against the CCP regime to the mainland. D1, through Mark Simon, loaned HK$5 million to the G20 campaign which was a global advertisement campaign against the ELAB. Apart from that, he had also instructed Mark Simon to donate GBP 20,000 to Hong Kong Watch set up by Benedict Rogers in London.

13.  In a speech on 10 July 2019 to the Foundation of Defense of Democracies (“FDD”) in Washington, D1 said he had asked the then US Vice-President Pence to encourage Hong Kong people as Hong Kong was fighting the same war against China as the US and the US had the moral authority like a “nuclear weapon” which could finish China in a minute. D1 also told Maria Bartiromo of Fox News in an interview that he had asked Pence, Pompeo and Bolton to support Hong Kong as it fights “your war” in “your enemy camp”.

14.  D1 was also keen to enlist and groom young men in his fight and Chan Tsz-wah (“Wayland”) was one of them. D1, in order to spread his influence among the young, even asked Wayland to introduce Lau Cho-dik (“Finn Lau”) (known locally as Mutual Destruction Bro), who was based in London, to fly to Taipei to meet D1 at his home in January 2020. It was later agreed by them that Finn Lau would continue the fight on the international front and Finn Lau later joined the Inter-Parliamentary Alliance on China (“IPAC”) when it was set up.

15.  In anticipation of the enactment of the NSL, D1 set up his Twitter account and the Apple Daily English News online in order to reach politically influential US readership and encourage US politicians to follow D1’s advice and requests.

16.  Even as late as 29 May 2020, D1 was still invoking his rhetoric that the CCP was a threat to world peace in an article in the New York Times. This was followed in his speech to the Hoover Institution where he again called for sanctions to “punish” China.

17.  D1 was so intent on his mission of hatred towards China that even though he was on bail for another matter and one of the conditions was that he was not allowed to travel, nevertheless he still asked Mark Simon to arrange for him to meet “the senior people” in Washington, in the National Security Council and the State Department. D1 then applied in June 2020 for the lifting of his travel restriction concealing his intended meetings with the officials in Washington. His application was fortunately unsuccessful.

18.  It is to be stressed that all D1’s actions and words to foreign countries to request for Sanctions, Blockades, Hostile Activities (“SBHA”) before the promulgation of the NSL are not the subject of any criminal charges but only serves as a background to the charges he faced.

19.  D1’s rabid hatred of the CCP including the PRC and the HKSAR was intense and even at the time he gave his testimony in Court it was just as intense. We have documented hereinbelow his evidence in Court and after a careful analysis against the contemporaneous documentary evidence we will explain why at the end of the day we reject his evidence.

20.  Very briefly stated, the issues in summary for the Court were:

(i)  in relation to Charge 1 whether D1 agreed with others to print seditious articles between 1 April 2019 and 24 June 2021; and

(ii)  in relation to Charges 2 and 3 whether D1 agreed with others to request foreign countries or institutions to impose SBHA against the PRC and the HKSAR after the enactment of the NSL that is between 1 July 2020 and 24 June 2021.

21.  Therefore with this short introduction we now take a look at the evidence that has emerged in the trial.

Chapter 1 – The Charges

22.  The present trial concerns the following defendants:

D1: Lai Chee-ying

D2: Apple Daily Limited

D3: Apple Daily Printing Limited

D4: AD Internet Limited

In this Reasons for Verdict, D2, D3 and D4 are collectively referred to as “the Corporate Defendants”.

23.  The charges are as follows:

Count 1 (against all defendants)                        

Statement of Offence

  Conspiracy to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap. 200 (“CO”).

Particulars of Offence

  D1 and the Corporate Defendants, between the 1 April 2019 and 24 June 2021, both dates inclusive, in Hong Kong, conspired together and with CHEUNG Kim-hung, CHAN Pui-man, LAW Wai-kwong, LAM Man-chung, FUNG Wai-kong, YEUNG Ching-kee and other persons, to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications, having an intention:-

(a)  to bring into hatred or contempt or to excite disaffection against the Central Authorities or the Government of the Hong Kong Special Administrative Region;

(b)  to excite inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established;

(c)  to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong;

(d)  to raise discontent or disaffection amongst inhabitants of Hong Kong;

(e)  to incite persons to violence; or

(f)  to counsel disobedience to law or to any lawful order.

Count 2 (against all defendants)                        

Statement of Offence

  Conspiracy to commit collusion with a foreign country or with external elements to endanger national security, contrary to Article 29(4) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (“NSL 29(4)”)[1] and sections 159A and 159C of the CO.

Particulars of Offence

  D1 and the Corporate Defendants, between 1 July 2020 and 24 June 2021, both dates inclusive, in Hong Kong, conspired together and with CHEUNG Kim-hung, CHAN Pui-man, LAW Wai-kwong, LAM Man-chung, FUNG Wai-kong, YEUNG Ching-kee and other persons to request a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to impose sanctions or blockade, or engage in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China.

Count 3 (against D1)                        

Statement of Offence

  Conspiracy to commit collusion with a foreign country or with external elements to endanger national security, contrary to NSL 29(4) and sections 159A and 159C of the CO.

Particulars of Offence

  D1, between the 1 July 2020 and 15 February 2021, both dates inclusive, in Hong Kong, conspired together with CHAN Tsz-wah, Mark Herman Simon, LI Yu-hin, LAU Cho-dik and other persons to request a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to impose sanctions or blockade, or engage in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China.

24.  There is on the Indictment a substantive charge of “collusion” under NSL 29(4) (Count 4) against D1 alone which is related to Count 3. However, the prosecution has elected to proceed with the conspiracy charge and not the related substantive charge. Therefore, Count 4 is left on the Indictment with our leave.

Application for stay of proceedings

25.  Before the commencement of the trial, on 2 May 2023 D1 applied for a stay of proceedings on the bases that: (1) the criminal proceedings against him would necessarily constitute a violation of his constitutional right to a hearing before an independent and impartial tribunal; and (2) a fair-minded and informed observer would conclude that the ensuing trial will not be free from political interference. It was submitted that, on either basis, the trial would amount to an abuse of process. Having heard counsel, on 29 May 2023 we dismissed the stay application with reasons given[2].

26.  At the outset of the trial, the defendants challenged the validity of Count 1 on the basis that it had been time-barred. Having heard submissions from the parties, on 22 December 2023 we handed down our ruling that the charge was not time-barred[3]. On 2 January 2024, D1 applied to re-open the time-bar issue on the basis that there were some perceived ambiguities in the aforesaid ruling. That application was also dismissed by the bench with reasons given on the same date[4].

The prosecution case

27.  By way of background, in 2019 there was a prolonged period of serious social unrest and public disorder in Hong Kong in connection with the introduction of the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill. Despite the fact that the HKSAR Government announced in September 2019 that the bill would be withdrawn and did formally withdraw the bill in October that year, the protests and the accompanying disorder and violence did not abate until sometime after the outbreak of the Covid-19 pandemic in early 2020. From then onwards, however, the protest metamorphosed into a resistance movement of which D1 (the founder of Apple Daily) and his newspaper were amongst those in the forefront. Gradually, social order was only eventually restored in Hong Kong subsequent to the resolute enactment of the NSL by the National People’s Congress on 30 June 2020.

28.  The prosecution alleged that:

(1)  D1 in achieving his goal to stop the ELAB from being enacted, through the operation of Apple Daily as a platform and the co-conspirators published seditious articles; and D1 closely collaborated with his foreign external connections and his co-conspirators. Some of the articles contained requests for foreign countries or external elements to impose SBHA against the PRC and the HKSAR. D1 lobbied for support against the enactment of the ELAB in the US and intentionally mobilised international opposition against the PRC and the HKSAR to solicit for foreign intervention to impose SBHA against the PRC and HKSAR.

(2)  D1’s request for SBHA became more aggressive and intense upon hearing of the decision by the Standing Committee of the National People’s Congress on 28 May 2020 that the NSL would be enacted. D1’s agreement with his co-conspirators to publish the seditious articles and requests for SBHA continued up until and even after the promulgation of the NSL on 30 June 2020.

(3)  As to Count 1, the defendants and the senior management of Apple Daily, riding on the social unrest and public disorder at the time, conspired together and with others to use Apple Daily as a platform for the publication of seditious articles with a view to bringing into hatred and stirring up opposition to the Central People’s Government (“CPG”) and the HKSAR Government.

(4)  As to Count 2, before the promulgation of the NSL, the defendants and the senior management of Apple Daily had agreed to use Apple Daily as a platform to request foreign countries to impose SBHA against the HKSAR or the PRC. Despite the promulgation of the NSL, they did not stop but continued to carry out their agreement.

(5)  As to Count 3, before the promulgation of the NSL, D1, CHAN Tsz-wah (“Wayland”), Mark Herman Simon (“Mark Simon”), LI Yu-hin (“Andy”), LAU Cho-dik (“Finn Lau”, also known as Mutual Destruction Bro) agreed to request foreign countries to impose SBHA against the HKSAR or the PRC and to also use “Stand with Hong Kong Fight for Freedom” (“SWHK”) as a platform. After the promulgation of the NSL, their agreement continued.

The defence case

29.  D1 elected to give evidence in his defence. His case was:

(1)  On Count 1, the articles in question were not seditious and there was no conspiracy to publish seditious articles.

(2)  On Count 2, after the promulgation of the NSL, he and Apple Daily had ceased to make any request for SBHA and there was no conspiracy to request SBHA.

(3)  On Count 3, he never had any agreement to request for SBHA prior to the NSL and if there was such an agreement it did not continue.

(4)  The accomplice witnesses, Cheung Kim-hung and Wayland, who gave evidence implicating him in the offences, were not telling the truth.

30.  The corporate defendants, D2, D3 and D4, elected not to give evidence or to call any witnesses. Their case was that the senior management identified by the prosecution did not constitute the directing mind and will of the corporate defendants and therefore did not render the corporate defendants guilty.

Chapter 2 – Relevant Legal Principles

Conspiracy

Section 159A(1) & (2), CO

31.  The Charges which the defendants faced was a statutory conspiracy brought under sections 159A and 159C of the Crimes Ordinance, Cap 200. Section 159A(1) and (2) provided as follows: 

“(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.

(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.”

Nature of a conspiracy

32.  There can be no dispute that conspiracy is an inchoate offence. In HKSAR v Lai Kam Fat[5], Ma CJ, giving the judgment of the Court of Final Appeal, said[6]:

“34. Conspiracy is an inchoate offence, meaning that it is constituted by an agreement to pursue a future course of conduct with the necessary intent and does not require the actual carrying out of the agreed upon acts. It is a different offence from the commission of the underlying substantive offence and criminal liability for conspiracy depends on the alleged conspirators’ intentions. As Lord Nicholls of Birkenhead observed, in R v Saik:

‘… conspiracy imposes criminal liability on the basis of a person’s intention. This is a different harm from the commission of the substantive offence. So it is right that the intention which is being criminalised in the offence of conspiracy should itself be blameworthy. This should be so, irrespective of the provisions of the substantive offence in that regard.’ ”

33.  Therefore, the crime of conspiracy is completed the moment two or more persons have agreed that they will do, at once or at some future time, certain things. It is not necessary in order to complete the offence that any one thing should be done beyond the agreement: R v Aspinall[7]. It is well-established that a conspiracy does not end with the making of the agreement. Rather, it will continue so long as there are two or more parties to it intending to carry out the design: DPP v Doot & Ors[8].

34.  Furthermore, as pointed out by the House of Lords in R v Anderson[9], what constitutes a statutory conspiracy is a matter of construction of the relevant provisions. It is not desirable to introduce ideas derived from the civil law of contract to a conspiracy.

35.  It has also been authoritatively affirmed by the Court of Final Appeal that, for the purpose of establishing guilt for a conspiracy charge, what the prosecution has to prove is that the defendant under consideration agreed with at least one of the named co-conspirators to commit a course of conduct which, if executed in accordance with their intentions, would necessarily involve the commission of the relevant substantive offence by one or more of them: HKSAR v Harjani Haresh Murlidhar[10].

36.  Lastly, we agree with the submission of the prosecution that a defendant would be criminally liable even though the agreement in question was not illegal at the time he joined in but was subsequently rendered illegal by a change in the law, provided that the agreement remained in existence after the change of the law and that the defendant remained a party to that agreement with one or more persons with the necessary intention. Whether or not this is in fact the case is a fact-sensitive issue: see Agius v R[11]; HKSAR v Ng Gordon ching-hang & Ors[12]. See also R v Boyle[13], where it was held by the English Court of Appeal that a charge of conspiracy to defraud could be brought under s.12(1) against conspirators who, before that section came into force, agreed to pursue and after that date did pursue a course of conduct which amounted to or involved the commission of specific criminal offences which would have been charged as a statutory conspiracy contrary to the Criminal Law Act 1977. This case shows that the making of a new agreement is not necessary for the Criminal Law Act 1977 to be applicable. It is sufficient that the parties simply continued to pursue their agreement as before. One thing clear though is that a defendant is not to be punished in respect of things done before the change in the law, but in respect of things done after that.

“Frustration”

37.  Based on the above, we reject without hesitation the following submissions made by leading counsel on behalf of D1, both at the close of the prosecution case (half time) and at closing that: (1) the doctrine of “frustration” in contract law should be applicable to a criminal conspiracy; (2) the NSL, which renders previously non-illegal activities criminal after its promulgation, constituted in the present case a “frustrating event”; (3) thus, D1 was discharged from his liabilities under any previous agreements which were rendered criminal by the NSL; and (4) as a result, D1 could not be convicted of the conspiracies charged, unless there was evidence showing that he became a party to similar “new agreements” with others after the promulgation of the NSL. As aforesaid, there is no warrant for the application of the contractual doctrine of “frustration” to a criminal conspiracy. Secondly, in view of the way the prosecution put their case, the question for this Court to decide is whether any of the previous agreements which the prosecution say were made before the NSL in fact continued after the NSL as alleged; if so, whether any of the defendants (including D1) remained a party to any of those agreements with intention to carry them out. This, as we have said, is a fact-sensitive issue to be decided according to the evidence.

38.  We shall explain more fully our reasons for dismissing D1’s submission at half time in due course.

Proof of a conspiracy

39.  We agree with the prosecution that it is not necessary for the prosecution to prove the date the conspiracy started. What is important is that the conspiracy which was the subject matter of the charge existed during the charge period. As pointed out by the English Court of Appeal in R v Siracusa[14], the origins of all conspiracies are concealed and it is usually quite impossible to establish when or where the initial agreement was made, or when or where other conspirators were recruited. The very existence of the agreement can only be inferred from overt acts. Furthermore, participation in a conspiracy is infinitely variable: it can be active or passive. If the majority shareholder and director of a company consents to the company being used for drug smuggling carried out in the company's name by a fellow director and minority shareholder, he is guilty of conspiracy. Consent, that is the agreement or adherence to the agreement, can be inferred if it is proved that he knew what was going on and the intention to participate in the furtherance of the criminal purpose is also established by his failure to stop the unlawful activity.

40.  As we have said, a conspiracy is a continuing offence. If a conspiracy is already formed and a person joins it afterwards, he is equally guilty: R v Murphy[15]. Conspirators may join in at various times, each attaching himself to that agreement. Any one of them may not know all the other parties to the conspiracy, but only that there are other parties. Any one of them may not know the full extent of the scheme to which he attaches himself, but what each must know is that there is coming into existence, or is in existence, a scheme which goes beyond the illegal act which he agrees to do: R v Sheik Abdul Rahman Bux & Ors[16]; R v Meyrick[17]; and R v Chrastny[18]. Others may join in and some conspirators may not know of the others as long as each agrees to give effect to a common object or purpose. Nor is the prosecution required to prove a defendant has known the full extent of the conspiracy to which he attaches himself: R v Griffiths and Others[19].

41.  The agreement which is the subject of the conspiracy can be expressed or implied or partly expressed or partly implied. It is sufficient upon proving beyond reasonable doubt that there has been a meeting of minds between more than one person. Proof of the existence of a conspiracy is generally a “matter of inference deduced from certain criminal acts of the parties accused, done in pursuance of an apparent criminal purpose in common between them”: R v Brisac[20]; and Churchill v Walton[21].

42.  In most cases, the intention and elements of the offence can be inferred from the overt acts and declarations including out of court statements whether made in the presence of a particular defendant or not. These inferences may be drawn to prove facts in issue and to provide the factual foundation for inferring facts in issue. Such use does not amount to hearsay use of the statements and distinct from the co-conspirators’ rule: Ahern v The Queen[22], applied in Oei Hengky Wiryo v HKSAR (No. 2)[23].

43.  It goes without saying, however, that no adverse inference against the defendant could be drawn unless it is the only reasonable inference on the evidence: HKSAR v Wong Tak Keung[24]. This is just an extension of the basic principle that the prosecution bear the burden of proof and have to prove the guilt of a defendant beyond reasonable doubt.

The offence of “collusion”

Article 29(4) of the National Security Law (NSL 29(4))

44.  Part 4 of the NSL consists of NSL 29 and NSL 30. The relevant part of NSL 29(4) is reproduced as follows:

Part 4 Collusion with a Foreign Country or with External Elements
to Endanger National Security

Article 29 … a person who requests a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China, … to commit any of the following acts shall be guilty of an offence:

…

(4) imposing sanctions or blockade, or engaging in other hostile activities against the Hong Kong Special Administrative Region or the People’s Republic of China;

…

A person who commits the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years.

The institution, organisation and individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China referred to in the first paragraph of this Article shall be convicted and punished for the same offence.”

(Underline supplied)

45.  For the sake of completeness, we shall also reproduce NSL 30:

“Article 30 A person who conspires with or directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an institution, organisation, or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China to commit the offences under Article 20 or 22 of this Law shall be liable to a more severe penalty in accordance with the provisions therein respectively.”

Similar legislations in other Common Law jurisdictions

46.  The Prosecution has rightly pointed out that Hong Kong is not unique in having a law safeguarding national security. Other common law jurisdictions have similar legislations[25]. To name a few examples:

•  the UK has the National Security Act in place since 2023;

•  in Australia, there is the Criminal Code Act 1995;

•  in Canada, there is the Foreign Interference and Security of Information Act; and

•  in Singapore, they have the Foreign Interference (Countermeasures) Act 2021.

It goes without saying that even if the same word is used repeatedly in one jurisdiction, it may bear different meanings in different legislations, not to say different legislations in different jurisdictions. That leads us to the following.

Construction of the NSL

47.  It was held by the Court of Final Appeal in HKSAR v Lai Chee Ying[26] that the NSL should be construed in light of its ordinary meaning, purpose and context. In so doing, regard could be made to the Explanations[27] and Decisions[28] made in proceedings of the National People’s Congress (“NPC”) and the National People’s Congress Standing Committee (“NPCSC”) regarding promulgation of the NSL as a law of the HKSAR, as extrinsic materials relevant to the consideration of the context and purpose of the NSL.

48.  In HKSAR v Lui Sai Yu[29], the Court of Final Appeal reiterated the principle of interpretation of the NSL laid down in HKSAR v Lai Chee Ying[30] that the NSL functioned coherently with the HKSAR’s legal system, and sought “convergence, compatibility and complementarity” with local laws unless they were expressly or impliedly displaced in the event of inconsistency pursuant to NSL 62. Moreover, it was held that the approach to construction to the NSL is the common law approach as established in Director of Immigration v Chong Fung Yuen[31].

The social context leading to the NSL

49.  The social context leading to the enactment of the NSL can be seen in “The Explanation on “the Draft Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security” (“The Explanation”)[32]. The Explanation began by identifying the concerns of the Central Authorities in the light of recent events in Hong Kong: 

“At present, the increasingly notable national security risks in the HKSAR have become a prominent problem. In particular, since the onset of Hong Kong’s “legislative amendment turmoil” in 2019, anti-China forces seeking to disrupt Hong Kong have blatantly advocated such notions as “Hong Kong independence”, “self-determination” and “referendum”, and engaged in activities to undermine national unity and split the country. They have brazenly desecrated and defiled the national flag and emblem, incited Hong Kong people to oppose China and the Communist Party of China (“CPC”), besiege Central People’s Government (“CPG”) offices in Hong Kong, and discriminate and ostracize Mainland personnel in Hong Kong. These forces have also willfully disrupted social order in Hong Kong, violently resisted police enforcement of the law, damaged public facilities and property, and paralysed governance by the government and operation of the legislature. Moreover in recent years, certain foreign or external forces have flagrantly interfered in Hong Kong’s affairs. They have made intervention and created disturbances in various ways, such as by legislative and administrative means and through non-governmental organisations. In collusion with those anti-China Hong Kong disrupters, these forces of the same ilk backed and cheered on the disrupters and provided a protective umbrella, and utilized Hong Kong to carry out activities endangering national security.  These acts and activities have seriously challenged the bottom line of the “One Country, Two Systems” principle, seriously undermined the rule of law, and seriously jeopardized national sovereignty, security and development interests.” 

(Underline supplied)

50.  As explained in the Explanation, the NSL was enacted in full awareness that national security in Hong Kong could be undermined by non-violent acts such as inciting public hatred and paralysing governance by the government and operation of the legislature. As noted by Poon CJHC in the judgement of the Court of Appeal in HKSAR v Tam Tak Chi[33]:

“Modern experiences show the seditious acts or activities endangering national security now take many diversified forms. Some involve violence or threat of violence. Some involve non-violent means but can be equally damaging. There is no valid basis for criminalising the former but not the latter.”

51.  In construing NSL 29, we note first that the word “collusion” appears only in NSL 1 and the heading of Part 4, but not in NSL 29 or NSL 30. NSL 1 (General Principles) says that the NSL is enacted for the purpose of:

•  ensuring the resolute, full and faithful implementation of the policy of One Country, Two Systems under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;

•  safeguarding national security;

•  preventing, suppressing and imposing punishment for the offences of secession, subversion, organisation and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the Hong Kong Special Administrative Region;

•  maintaining prosperity and stability of the Hong Kong Special Administrative Region; and

•  protecting the lawful rights and interests of the residents of the Hong Kong Special Administrative Region.

(Underline provided)

52.  Secondly, we note that the word “collusion” is not defined in the NSL, nor are the terms “sanctions”, “blockade” and “hostile activities” used in NSL 29(4). If any of these terms were intended to be a term of art which bear a different meaning to what is commonly understood, then we would expect definitions to be given.

53.  As aforesaid, the NSL should be construed in light of its ordinary meaning, purpose and context. As regards the ordinary meaning of the words used in a statutory provision, Lord Reid in Pinner v Everett [34] had the following to say,

“In determining the meaning of any word or phrase in a statute the first question to ask always is what is the natural or ordinary meaning of that word of phrase in its context in the statute? It is only when that meaning leads to some result which cannot reasonably be supposed to have been the intention of the legislature that it is proper to look for some other possible meaning of the word or phrase.”

54.  The importance of attaching the natural or ordinary meaning to the words used in a statutory provision was also stressed by Lord Diplock in Duport Steels Ltd v Sirs[35]:

“When Parliament legislates to remedy what the majority of its members at the time perceive to be a defect or a lacuna in the existing law (whether it be the written law enacted by existing statutes or the unwritten common law as it has been expounded by the judges in decided cases), the role of the judiciary is confined to ascertaining from the words that Parliament has approved as expressing its intention what that intention was, and to giving effect to it. Where the meaning of the statutory words is plain and unambiguous it is not for the judges to invent fancied ambiguities as an excuse for failing to give effect to its plain meaning because they themselves consider that the consequences of doing so would be inexpedient, or even unjust or immoral. In controversial matters such as are involved in industrial relations there is room for differences of opinion as to what is expedient, what is just and what is morally justifiable. Under our constitution it is Parliament's opinion on these matters that is paramount.”

55.  We also bear in mind the following general principle stated in Bennion, Bailey and Norbury on Statutory Interpretation concerning the use of a heading in construing a statutory provision:

“A heading is part of an Act. It may be considered in construing any provision of the Act, provided due account is taken of the fact that its function is merely to serve as a brief guide to the material to which it relates and that it may not be entirely accurate.”[36]

“The function of a heading is to serve as a brief guide to the content of the provisions to which it relates. A heading can only be an approximation and may not cover everything falling within the provision to which it is attached.” [37]

It is noted that a statement to similar effect in an earlier edition of this book was judicially approved by the Federal Court of Australia in Liebert Corpn Australia Pty Ltd v Collector of Customs[38].

56.  Having considered the provisions of NSL 1, NSL 29 and NSL 30 in Part 4, in our judgment the word “collusion” contained in NSL 1 and the heading of Part 4 only serves as a brief guide to the content of NSL 29 and NSL 30 and does not have the effect limiting the latter two articles.;

57.  Secondly, having taken into account:

•  the paramount importance of safeguarding national security;

•  the purpose of the NSL encapsulated in NSL 1; 

•  the respect and protection to human rights and freedom stressed in NSL 4 and enshrined in the Basic Law;

•  the principle rule of law adherence to in NSL 5; and

•  the context of NSL 29(4) taken in its widest sense,

we come to the conclusion that:

(a)  in view of the use of the word “other” before “hostile activities in NSL 29(4), we are of the view that the ejusdem generis rule is applicable so that “sanction” and “blockade” should be understood as different forms of “hostile activities” for the purpose of that article, there being nothing in its context or the legislative intent of the NSL indicating otherwise: see HKSAR v Chan Chun Kit[39]; and

(b)  in order to give due effect to the purpose of the NSL, the terms “sanctions”, “blockade” and “hostile activities” used in NSL 29(4) shall be given their plain and ordinary meaning; and

(c)  for the same reason, the word “request” shall also be given its plain and ordinary meaning. Moreover, a request can be made orally or in writing and it can be made explicitly or implicitly.

58.  In arriving at the aforesaid conclusion, we have fully considered the contrary submissions made on behalf of D1 in their written closing which we do not intend to repeat here. With respect, there is no merit to any of those submissions. In particular:

(1)  we do not agree with the defence submission that the law of “incitement” is relevant to the interpretation of the word “request” used in NSL 29(4). In our judgment, to “request” in that article simply means to ask and to appeal for something or something to be done. Moreover, we are of the view that a request for sanction can be made either explicitly or implicitly. What is important is that the person who makes the request intends that sanctions be imposed by a foreign country or entity;

(2)  we do not agree with the defence submission that the Charter or resolutions of the United Nations and the international law are of any assistance in construing the NSL or what is meant by a “sanction”, a “blockade” or a “hostile activity” in NSL 29(4). The approach to the interpretation of the NSL has been authoritatively laid down by the Court of Final Appeal in HKSAR v Lai Chee Ying, ante and HKSAR v Lui Sai Yu, ante.  By a purposive approach of interpretation, the words “sanction”, “blockade” and “hostile activity” used in NSL 29(4), properly construed according to the purpose, context and legislative background leading to the enactment of the NSL, should be given their plain and ordinary meanings. Thus, in our judgment a technology embargo imposed by a foreign country against the PRC or the HKSAR is capable of being categorized as a “blockade” or “hostile activity”;

(3)  we do not agree that the “act of state doctrine” has any application in the present case. We are not concerned with the validity or otherwise of the measures imposed or proposed by foreign countries against the PRC or the HKSAR according to their domestic law. Rather, we are concerned whether those measures were targeted at the PRC or the HKSAR and could be regarded as hostile activities. That is a case-specific question of fact for the Court; and

(4)  we do not agree with the submission that NSL 29(4) does not cover a request for SBHA against officials of the PRC or the HKSAR. In our view, this submission, which is based on a narrow and literal reading of the provision, serves only to defeat the purpose of the provision and therefore must be dismissed. In our judgment, any SBHA which aims at officials of the PRC or the HKSAR, as the case may be, for their work done or things said in their official capacity on behalf of their Government is equal to SBHA which aims at the PRC or HKSAR.

The elements of Count 2 and Count 3

59.  In our judgment, the substantive offence of “collusion” under NSL 29 (4) consists of the following elements:

(a)  the accused made a request;

(b)  the request was made to a foreign country or entity; and

(c)  the purpose of the request was for the foreign country or entity to impose sanctions or blockade, or to engage in other hostile activities against the HKSAR or the PRC.

We note that the provision of NSL 29(4) does not require that the request in question resulted in any SBHA. In other words, the offence under NSL 29(4) is an “action crime” rather than a “result crime”.

60.  It follows that the elements of the offence of “conspiracy to commit collusion” are as follows:

(a)  there exists an agreement of two or more persons;

(b)  the agreement was to make a request to a foreign country or entity;

(c)  the request was to impose sanctions or blockade or to engage in other hostile activities against the HKSAR or the PRC;

(d)  the agreement, if carried out in accordance with their intention, will necessarily amount to or involve the commission of an offence of “collusion” under NSL 29(4) by one or more of them.

61.  Count 2 and Count 3 being inchoate offences, it is not necessary that a request for sanction had actually been made or that a sanction had actually been imposed. This, in our judgment, is consistent with the purpose of “preventing … collusion with a foreign country … to endanger national security” stated in NSL 1.

62.  During the course of his closing speech, leading counsel for D1 submitted that it was an element of Counts 2 and 3 that an accused (who was a party to the agreement) had the intention to commit an act which he knew to be illegal. In other words, it is the defence submission that the prosecution has to prove that the accused had knowledge of the illegality of the agreement. With respect, we disagree, the reasons being that the defence proposition:

(1)  is neither supported in the terms of s159A of the Crimes Ordinance nor those of NSL 29;

(2)  is contrary to the general principle that ignorance of the law is not a defence; and 

(3)  is not supported by any case authority.

63.  In this regard, we note that several accomplice witnesses gave evidence either that they had taken steps to avoid getting into trouble with the NSL or that they did not intend to do acts which would be illegal. In our judgment, however, if all the elements of the offence were proved to be present, then their mistaken belief about the legality of their act would not afford them a defence.

The offence of “sedition”

Sections 9 & 10 of the Crimes Ordinance

64.  Section 9 of the Crimes Ordinance (“CO”) provides:

(1) A seditious intention is an intention—

(a) to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, or Her Heirs or Successors, or against the Government of Hong Kong, or the government of any other part of Her Majesty’s dominions or of any territory under Her Majesty’s protection as by law established; or

(b) to excite Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established; or

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong; or

(d) to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Hong Kong; or

(e) to promote feelings of ill-will and enmity between different classes of the population of Hong Kong; or

(f) to incite persons to violence; or

(g) to counsel disobedience to law or to any lawful order.

(2) An act, speech or publication is not seditious by reason only that it intends— 

(a) to show that Her Majesty has been misled or mistaken in any of Her measures; or

(b) to point out errors or defects in the government or constitution of Hong Kong as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

(c) to persuade Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in Hong Kong as by law established; or

(d) to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Hong Kong.

(Underline supplied)

65.  Section 10 of the CO provides:

(1) Any person who—

…

(c) prints, publishes, sells, offers for sale, distributes, displays or reproduces any seditious publication;

…

shall be guilty of an offence and shall be liable for a first offence to a fine at level 2 and to imprisonment for 2 years, and for a subsequent offence to imprisonment for 3 years; and any seditious publication shall be forfeited to the Crown.

…

(5) In this section—

seditious publication (煽動刊物) means a publication having a seditious intention;

seditious words (煽動文字) means words having a seditious intention.

The judgments in HKSAR v Tam Tak Chi

66.  In HKSAR v Tam Tak Chi[40], the Court of Final Appeal held that the intention to incite others to violence or public disorder is not an element of the offence under section 10 of the CO.

67.  Insofar as it is relevant to the present case, it was the judgment of the Court of Appeal in HKSAR v Tam Tak Chi[41] (which was not challenged on further appeal to the Court of Final Appeal) that:

(1)  The offence of sedition satisfied the four-stage test of proportionality and was therefore constitutional in that: (i) it pursued the legitimate aim of national security or public order; (ii) the offence was plainly rationally connected to its legitimate aim; (iii) the offence was no more than necessary to accomplish its legitimate aim; (iv) a fair balance between societal benefits and the inroads made into the individual’s rights was struck;

(2)  the words complained of, that are, “hatred”, “contempt”, “disaffection”, “discontent”, “feelings of ill-will and enmity”, were ordinary language:

•  “hatred” connotes a strong sense of hostility or aversion towards the government or the administration of justice (section 9(1)(a) and (c));

•  “contempt” refers to open, defiant disobedience or disrespect of the legitimacy or lawful authority of the government or administration of justice in Hong Kong (section 9(1)(a) and (c));

•  “disaffection” refers to provoking, stimulating or implanting a feeling or view to oppose the legitimacy or authority of the government, the administration of justice or to antagonise the inhabitants (section 9(1)(a), (c) and (d));

•  “discontent” refers to provoking, stimulating or implanting a feeling of resentment amongst the inhabitants (section 9(1)(d));

•  “feelings of ill-will and enmity” refers to provoking, stimulating or implanting animosity between different classes of the population of Hong Kong (section 9(1)(e)).

In brief, they aimed at prohibiting words which, objectively understood, had the intention of:

(i)  seriously undermining the legitimacy or authority of the Central People’s Government, the HKSAR Government, and their institutions; the constitutional order or status of the HKSAR; and the administration of justice in Hong Kong; and

(ii)  seriously harming the relationship between the Central People’s Government or the HKSAR Government with Hong Kong inhabitants; and the relationship among Hong Kong inhabitants;

(3)  Section 9(1) had to be read together with section 9(2) which set out four circumstances in which there was no seditious intention and provided further clarity in differentiating between lawful and unlawful speeches.

68.  At the hearing before the Court of Appeal in HKSAR v Tam Tak Chi, the applicant conceded at the hearing that the offence under section 10(1)(b) of the Crimes Ordinance (uttering seditious words) was an offence of “basic intent”, so that the prosecution only needs to prove that the accused intended to utter the seditious words and he knew that the utterance was having a seditious intention prescribed under section 9(1). Therefore, the Court of Appeal was not required to decide whether or not the offences under section 10 of the CO were ones of “basic intent” or “specific intent”[42]. In view of our factual findings, which we will come to in due course, it is also not necessary for us to deal with this point.

The operation of section 9(2) of the CO

69.  The offences of “sedition” under the CO has now been repealed and replaced by the new offences created under Part 3, Division 4 (Acts with Seditious Intention etc) of the Safeguarding National Security Ordinance (Instrument A305). We note that, however, that the structure of the new offences are modelled on the old provisions in the CO in that section 23(2) of A305 defines what constitutes a “seditious intention”; sections 23(3) & (4) provide for intentions which are not considered as “seditious”; and section 24 is the offence-creating provision. It is noted that statutory regard has been given to the judgments of the Courts in HKSAR v Tam Tak Chi that proof of an intention to incite public disorder or to incite violence is not necessary: section 25.

70.  As regards section 23(3) of A305, we note that the word “only” which appears in the old section 9(2) of the CO is retained:

(3) However—

(a) if a person does an act only with any of the intentions specified in subsection (4), the act is not done with a seditious intention; and

(b) if an act, word or publication only has any of the intentions specified in subsection (4), the act, word or publication is not an act, word or publication that has a seditious intention.

(4) The intentions are as follows—

(a) an intention to give an opinion on the system or constitutional order mentioned in subsection (2)(a) or (b), with a view to improving the system or constitutional order;

(b) an intention to point out an issue on a matter in respect of an institution or authority mentioned in subsection (2)(a) or (b), with a view to giving an opinion on the improvement of the matter;

(c) an intention to persuade any person to attempt to procure the alteration, by lawful means, of—

(i) any matter established in accordance with the law by the Central Authorities in relation to the HKSAR; or

(ii) any matter established in accordance with the law in the HKSAR;

(d) an intention to point out that hatred or enmity amongst different classes of residents of the HKSAR or amongst residents of different regions of China is produced, or that there is a tendency for such hatred or enmity to be produced, with a view to removing the hatred or enmity.

(Underlined supplied)

71.  In our judgment, the use of the word “only” in section 23(3) of A305 is purposeful and important, in that it evinces the legislative intention to restrict the operation of sections 23(3) and (4) of A305 as they did in respect of the old section 9(2) of the CO. Properly understood, the operation of the old section 9(2) of the CO is such that an act or a publication in question could be “seditious”, if the intentions referred to in section 9(2) are not the “only” intentions for the act or publication. For example, if an accused in uttering a seditious speech had the intention “to point out errors or defects in the Government with a view to the remedying of such error or defects” (“the first intention”) and at the same time he also had the intention to bring into hatred or contempt or to excite disaffection against the Government of HKSAR (“the second intention”), then section 9(2) would not be applicable and the accused would still be guilty of the offence of “uttering seditious words” under section 10(1)(b). This is because “the first intention” is not the “only” intention for the speech.  

The elements of Count 1

72.  In our judgment, the elements of the conspiracy charged in Count 1 consists of the following elements:

(a)  there exists an agreement of two or more persons;

(b)  the agreement was to print, publish, sell, offer for sale, distribute, display and/or produce publications;

(c)  the publications that the parties agreed to print, etc, would be “seditious” as defined in section 9 of the CO; and

(d)  the agreement, if carried out in accordance with their intention, will necessarily amount to or involve the commission of an offence under section 10(1)(c) of the CO by one or more of them.

73.  Count 1 being an inchoate offence, it is not necessary that any “seditious publications” had in fact been produced or published. It is also not necessary for the prosecution to prove that an accused (who was a party to the agreement) had knowledge of the illegality of the agreement.

Corporate criminal liability – the directing mind

74.  It is well accepted that a company can be guilty of both statutory[43] and common law offences[44], even those requiring mens rea. However, a company cannot be indicted for a crime for which the only punishment is imprisonment[45].

75.  As submitted by the prosecution and not challenged by the defence, that a company may be found guilty of offences under the NSL for the following reasons:

(1)  NSL 31, which provides for the penalty of an offence under the NSL committed by an “incorporated or unincorporated body such as a company or an organisation”, clearly contemplates such an incident; and

(2)  NSL 36 provides that the NSL “shall apply to offences under this Law which are committed in the Hong Kong Special Administrative Region by any person”. The word “person” is defined by the Interpretation and General Clauses Ordinance, Cap 1, to include a body corporate. There is nothing in the NSL to suggest that the definition of “person” in Cap 1 should not be applicable.

The finding of guilt is under the doctrine of attribution, where the conduct of individuals representing the “directing mind and will” of the company is attributed to the company. Thus the company may also be held criminally liable. It is a question of law whether, once the facts have been ascertained, a person in doing particular things is to be regarded as the company or merely as the company's servant or agent: Tesco Supermarkets Ltd v Nattrass[46].

76.  Lord Walker of Gestingthorpe NPJ, who gave the majority judgment of the Court of Final Appeal[47] in Moulin Global Eyecare Trading Ltd v Commissioner of Inland Revenue[48], pointed out that the emphasis of “merely” is markedly different[49]. His lordship said[50],

“64. An employee who holds a position of responsibility (for instance, the manager of a large supermarket which is part of a nationwide chain) may have power to bind his corporate employer, but his authority to do so is derived (expressly, impliedly, or ostensibly) from the corporate employer’s board of directors. The directors alone are in the special position of deriving their authority, not from other natural persons, but from the company’s written constitution, that is its memorandum and articles of association. …”

77.  Lord Walker reviewed a series of case authorities including El Ajou v Dollar Land Holdings Plc[51]and Meridian Global Funds Management Asia Ltd v Securities Commission[52].  Meridian was an appeal from New Zealand to the Privy Council where it was held that the chief investment officer of an investment management company was its directing mind and will and so his knowledge was attributable to the company.  Lord Walker said that Meridian “is now rightly regarded as the leading case on the topic of attribution in company law”. His Lordship said:

“… its most important contribution to company law is perhaps the clarity of Lord Hoffmann’s tripartite classification of: (i) (at 506C) primary rules of attribution, derived from company law statutes and the articles of association of the company concerned; (ii) (at 506G): “general rules of attribution which are equally available to natural persons, namely, the principles of agency”; and (iii) (at 507B) “exceptional cases”… when a rule of law, either expressly or impliedly, excludes attribution on the basis of the general principles of agency or vicarious liability.”

As regards cases in the third category, it is the Court’s task to determine the intention of the legislature from the statutory language, purpose and context and to fashion a special rule where it is dealing. As Lord Hoffmann explained in Meridian[53]:

“This is always a matter of interpretation: given that it was intended to apply to a company, how was it intended to apply? Whose act (or knowledge, or state of mind) was for this purpose intended to count as the act etc of the company? One finds the answer to this question by applying the usual canons of interpretation, taking into account the language of the rule (if it is a statute) and its content and policy.”

78.  See also R v St Regis Paper Company Ltd[54] , where it was held by the English Court of Appeal, applying Meridian, that the conventional approach to attributing criminal liability to a corporate body for offences requiring proof of mens rea required a controlling officer of the corporation to have performed the proscribed conduct with the relevant guilty intention; on the basis of that approach the question for a jury would be whether those who had committed the offence with the requisite intention constituted the “directing mind and will” of the corporation. Such persons would normally be the board of directors, the managing director and other superior officers of the company who carried out the functions of management and spoke and acted as the company. There might, however, be cases where, although the Court considered that the law was intended to apply to companies, insistence on the primary rules of attribution would in practice defeat that intention: in such cases the Court had to fashion, on the basis of interpretation of the relevant statute or regulation, a special rule of attribution geared to the purposes of the statute or regulation.

Taking of judicial notice

79.  Both the prosecution and the defence respectively asked that this Court take judicial notice of certain matters which they say are relevant to this case. We note that the prosecution made their request in their written closing submissions together with references to the relevant legal principles and materials in support. On the other hand, the defence request was a last minute decision made during oral closing and not forewarned in their written submissions.

Legal principles

80.  When judicial notice of a fact is taken, a Court may accept that fact as proven without requiring proof of it in the normal way. The following legal principles taken from Phipson on Evidence (20^th edition) on “judicial notice” is not in dispute:

(1)  Judicial notice is the cognisance taken by the Court itself of certain matters which are so notorious, or clearly established, that evidence of their existence is deemed unnecessary[55]; and 

(2)  The party seeking judicial notice of a fact has the burden of convincing the judge that:

(a)  The matter is so notorious as not to be the subject of dispute among reasonable men; or

(b)  The matter is capable of immediate accurate demonstration by resort to readily accessible sources of indisputable accuracy[56].

The sources consulted by the judge may include reports of previous cases, certificates from various officials, works of reference, and oral statements of witnesses: Cross and Tapper on Evidence (13^th edition)[57]. As the prosecution pointed out, and it is not in dispute, that judges may, in arriving at their decisions, use their general information and knowledge of the common affairs of life which men of ordinary intelligence possess, so long as they do not act on their own private knowledge or belief regarding the facts of a particular case: R v Sutton[58].

Application to the present case

81.  Applying the above legal principles to the present case and the relevant materials referred to by the prosecution in their written closing submissions, we consider that the following matters are proper subjects of judicial notice:

(1)  Since June 2019, Hong Kong experienced serious social unrest and public disorder marked by protests, escalating violence, vandalisms, and arsons across the territory. It was a dire situation that had not been seen in the last 50 years. The increasing violence had resulted in widespread property damage, assaults on persons, serious damage and interruptions to major public transportation facilities and highways;

(2)  During the social unrest and public disorder in 2019, a series of events took place, including:

(a)  in February 2019, the HKSAR Government proposed to introduce the Fugitive Offenders and Mutual Legal Assistance in Criminal Matters Legislation (Amendment) Bill 2019 (“ELAB”) which was followed by the Bill submitted into the legislative process in March;

(b)  on 12 June 2019, the Legislative Council (“LegCo”) was besieged by protesters, pressuring the Government to withdraw the ELAB;

(c)  on 15 June 2019, the Chief Executive of HKSAR announced to suspend the ELAB;

(d)  on 1 July 2019, a sizable number of the public took to the streets to protest against the ELAB. Thereafter, some of the protesters forcefully entered the Legislative Council Building;

(e)  on 4 September 2019, the Chief Executive of HKSAR announced to withdraw the ELAB;

(f)  on 5 October 2019, the Government invoked section 2(1) of the Emergency Regulations Ordinance, Cap.241 and enacted the Prohibition on Face Covering Regulation to prohibit the use of facial covering at certain public meetings and processions and

(g)  on 23 October 2019 the Government announced the formal withdrawal of the ELAB.

(3)  Despite the Chief Executive having announced in September 2019 that the Extradition Bill would be withdrawn and the Government having enacted the Prohibition on Face Covering Regulation, and the formal withdrawal of the ELAB in October 2019, the protests and widespread violence continued to escalate. Large-scale protests continued to take place, blocking major carriageways, causing significant disruptions to public transportation systems as well as widespread property damage. Riots and unlawful gatherings also took place in multiple universities across Hong Kong;

(4)  In November 2019, as part of the social unrest which escalated since June 2019, there were riots and other unlawful activities at the Chinese University of Hong Kong and the Polytechnic University of Hong Kong.

82.  In fact, even without resorting to the taking of judicial notice, the above matters had already been referred to during the course of the trial by the witnesses, previous judgments of the Courts[59], and the relevant legislative and public documents (including the Explanation). Furthermore, we are satisfied that the above matters are relevant in that they provided the necessary social background and setting which assist this Court to have a full picture of the various incidents canvassed in this trial.

83.  The defence also applied for us to take judicial notice of five matters which, they submit, were “notorious facts”:

(1)  the various individuals and organizations on whom the PRC had imposed sanctions;

(2)  the PRC and the HKSAR sanctions on foreign states;

(3)  the PRC was not at war with another state between 2019 and 2021 and the last war the PRC engaged in was in 1979;

(4)  Hong Kong is “Asia’s world city”; and

(5)  Martin Lee was the most experienced barrister in HK and a former politician.

84.  We note that the legal team for D1 has not referred us to any materials which supported any of the above. We are of the view that items (1), (2) and (4) are not proper subjects of judicial notice. Besides, we are also unable to see the relevance of any of the five items to the present trial. Therefore, the defence application is refused.

D1’s no-case submission

The grounds

85.  At the close of the prosecution case, a no-case submission was made on behalf of D1 on the following grounds:

(1)  the Prosecution has no evidence to prove that there was an agreement after 1 July 2020 to pursue the call for SBHA by D1 and the co-conspirators (Ground 1);

(2)  the impugned content on Count 2 did not amount to a “request” (Ground 2); and

(3)  it was clear from the evidence of the accomplice witnesses that D1 had wanted to operate within the law so there could not have been an unlawful agreement in place (Ground 3).

The relevant legal principles

86.  It is agreed by both parties that the seminal case on no-case submissions is R v Galbraith[60]. It has been held in Re Secretary for Justice’s Reference (Nos 1-3/2021)[61] that on a proper application of the no case to answer test in R v Galbraith, the prosecution was not required to show that the jury could not reasonably reach any alternative inference contended for. The question was whether it was properly open to the jury to reach the inference contended for by the prosecution. If there was an inference of guilt which was reasonably open to the jury to draw, the case could be left to the jury, notwithstanding there might be another inference consistent with innocence.

87.  As to how a trial judge should approach a prosecution’s case based on inferences when faced with a no-case submission, it was held in Re Secretary for Justice’s Reference (Nos 1-3/2021) that the following passage of Kempster JA in Attorney General v Li Fook Shiu Ronald[62], which is about an application to discharge made under section 22 of the Complex Commercial Crimes Ordinance, Cap 394, is also applicable in an application of no-case to answer:

“In relation equally to primary facts and to inferences to be drawn from such facts, his concern is not with present proof to his satisfaction but with potential future proof to that of a jury. Both primary facts and the inferences therefrom are ‘matters generally speaking within the province of the jury’ in the language of Galbraith. Both can critically be affected by later evidence or lack of evidence from the defence. Assuming all proper directions, the test is not what the judge thinks the jury, and still less he, ‘must’ conclude at that moment, but what a jury ‘could, may or might’ properly conclude in the future.”

Reasons for ruling

88.  We have already set out the relevant legal principles on the law of “conspiracy”, the offence of “collusion” under NSL 29(4) and also the offence of “sedition” under sections 9 and 10 of the CO. We have already given reasons why we rejected the defence submission on “frustration”.

89.  Having considered the submission of the parties, we came to the following decisions:

(1)  as regards Grounds 1 and 2, we considered that whether there were continuing agreements (as alleged by the prosecution) after 1 July 2020 and whether the impugned content did or did not amount to a “request” are jury questions. We considered that there was sufficient evidence on both Count 2 and Count 3 to support a prima facie case;

(2)  as regards Ground 3, for reasons which we have already given, knowledge of the illegality of the agreement is not an element of any of the conspiracies charged and a mistake of law does not afford an accused a defence; and

(3)  as regards the defence submission on Count 1 that the publications in question were merely legitimate news reporting and opinions protected by the freedom of the press and freedom of speech, as noted above, the offence of sedition under the CO have already been held to be constitutional by the Court of Appeal in HKSAR v Tam Tak-chi, a decision which is binding on this Court. Therefore, there was no real conflict between the law of sedition on the one hand and press freedom and freedom of speech on the other. It is a jury question at the end of the day whether there were legitimate expressions by D1 and his co-conspirators and not a matter for us to decide at half-time. Based on the contents of the publications in question, we considered that there is sufficient evidence to support a prima facie case on Count 1.

90.  For the above reasons we found that D1 had a case to answer on all three Counts.

Chapter 3 – The Defendants

Introduction

91.  D1 was the founder of Next Digital Limited (Chinese name: 壹傳媒有限公司) (“NDL”).

92.  At all material times,

•  D2 was registered proprietor and publisher of Apple Daily[63];

•  D3 was the registered printer of Apple Daily[64]; and

•  D4 was the owner and user of the domain name “appledaily.com.hk”[65].

The Corporate Defendants were subsidiaries of NDL[66].

NDL

93.  During the charge period of Count 1, NDL was listed on the Hong Kong Main Board and D1 was the majority shareholder of NDL who held approximately 71% of its shares[67].

94.  The Board of Directors of NDL consisted of the following[68]:

Name	Position	Period
Lai Chee-ying (D1)	Executive Director (Chairman)	Between 1999 and 12 December 2014
	Non-Executive Director (Chairman)	Between 1 February 2018 and 25 May 2020
	Executive Director (Chairman)	Between 25 May 2020 and 29 December 2020
Cheung Kim-hung	Executive Director		Between 1 February 2018 and 30 June 2021
Chow Tat-kuen	Executive Director		Between 1 January 2016 and 2 July 2021
	Company Secretary		Between 27 June 2016 and 2 July 2021
Mark Clifford	Independent Non-executive Director		Including from 9 May 2018 to 5 September 2021
Louis Gordon Crovitz	Independent Non-executive Director		Including from 26 March 2018 to present

95.  Besides, the following persons occupied the following positions in NDL and its subsidiaries (collectively referred to as the “Group”)[69]:

Name	Position	Period
D1	Chairman	Between 1999 and 12 December 2014; and Between 1 February 2018 and 29 December 2020
	Chief Executive Officer	Between 1 January 2008 and 2 October 2008
Cheung Kim-hung	Chief Executive Officer	Between 1 February 2018 and 30 June 2021
Chow Tat-kuen	Chief Financial Officer	Between 1 January 2016 and 25 August 2020
	Chief Operating Officer	Between October 2019 and 2 July 2021

Apple Daily Limited (D2)

96.  During the period specified below, the following persons were directors of D2[70]:

Person	Period
Cheung Kim-hung	Between 1 February 2018 and 30 June 2021
Chan Pui-man	Between 20 August 2020 and 25 June 2021
Law Wai-kwong	Between 20 August 2020 and 18 June 2021
Cheung Chi-wai, Nick	Between 20 August 2020 and 22 June 2021
Chow Tat-kuen	Between 1 January 2016 and 2 July 2021

Apple Daily Printing Limited (D3)

97.  During the period specified below, the following persons were directors of D3[71]:

Person	Period
Cheung Kim-hung	Between 1 February 2018 and 30 June 2021
Chan Pui-man	Between 20 August 2020 and 25 June 2021
Law Wai-kwong	Between 20 August 2020 and 18 June 2021
Cheung Chi-wai, Nick	Between 20 August 2020 and 22 June 2021
Chow Tat-kuen	Between 1 January 2016 and 2 July 2021

AD Internet Limited (D4)

98.  During the period specified below, the following persons were directors of D4[72]:

Person	Period
Cheung Kim-hung	Between 1 February 2018 and 30 June 2021
Chow Tat-kuen	Between 1 January 2016 and 2 July 2021

Chapter 4 – Accomplice witnesses

99.  The prosecution called the following civilians to give factual evidence against the defendants:

•  Cheung Kim-hung (PW7)

•  Chan Pui-man (PW8)

•  Yeung Ching-kee (PW9)

•  Li Yu-hin (PW10) (“Andy”)

•  Chan Tsz-wah (PW11) (“Wayland”)

•  Chow Tat-kuen (PW12) (“Royston”)

Cheung Kim-hung

Personal background

100.  Cheung Kim-hung graduated from the Chinese University of Hong Kong with a Bachelor’s Degree in Social Science and Journalism in 1983.

101.  Before joining Next Magazine in 1991 as Financial Editor, Cheung Kim-hung had worked in various newspapers including Financial News, Ming Pao and Hong Kong Economic Times. With the development of the business of Next Magazine, other magazines were later published. In 1994, Cheung Kim-hung was promoted by D1 to Editor-in-Chief. In 1995, D1 set up Apple Daily in Hong Kong. In 1999, the company became publicly listed. In 2000, D1 decided to establish Next Magazine in Taiwan and Cheung Kim-hung went there with him and assisted in setting up the magazine, as a result of which he handed over the post of Editor-in-Chief in Hong Kong and spent most of his time in Taiwan working closely with D1. In April 2005, however, Cheung Kim-hung decided to take a rest and he quitted Next Magazine Taiwan, as it was by then established.

102.  In 2010, at the invitation of D1, Cheung Kim-hung re-joined Next Magazine in Hong Kong as Content Advisor. In April 2011, he was transferred by D1 from Next Magazine to Apple Daily and became its Editor-in-Chief. Between April 2011 and December 2014, Cheung Kim-hung became the registered Editor of Apple Daily for the purpose of the Registration of Local Newspapers Ordinance and worked as its Associate Publisher. In 2016, he was promoted by D1 to Publisher. He was further promoted by D1 to Deputy CEO of the Group in 2017 and CEO in February 2018.  

103.  Besides, Cheung Kim-hung was a director of NDL’s subsidiaries including the Corporate Defendants.

Charges

104.  Cheung Kim-hung was arrested on 17 June 2021 and subsequently charged with the offence of conspiracy to commit collusion (Count 2). Afterwards, he was additionally charged with the offence of conspiracy to publish seditious publications (Count 1).

105.  On 17 May 2022, he pleaded guilty at committal in the Magistrates’ Court to Count 2 and the other charge was left on court file upon the prosecution’s application.   

Chan Pui-man

Personal background

106.  Chan Pui-man was born and educated in Hong Kong. She received university education and majored in Business Administration. She first joined Apple Daily in December 1996. Before that, she had worked in Capital Magazine and Sing Tao Daily. She joined Apple Daily as a senior reporter and was subsequently promoted to principal reporter, news editor, and Editor-in-Chief. She worked mainly in the local news section.

107.  In 2016, Chan Pui-man was diagnosed with cancer. She took sick leave for about seven months. When she resumed work, she was concerned that she might not be able to cope with the workload and pressure of being Editor-in-Chief. At that time, there was a vacancy for the post of Associate Publisher. With the blessings of Cheung Kim-hung, she took up that position in 2017, responsible for the print form of Apple Daily.

Charges

108.  Chan Pui-man was arrested on 17 June 2021 when the premises of Apple Daily was searched by the police for a second time[73]. She was released on police bail until 21 July 2021, on which day she was re-arrested and was charged with two charges, namely: conspiracy to publish seditious publications (Count 1); and conspiracy to commit collusion (Count 2).

109.  On 17 May 2022, before the committing magistrate, Chan Pui-man pleaded guilty to Count 2, whilst the other charge was left on court file on the application of the prosecution.

Yeung Ching-kee

Personal background

110.  Yeung Ching-kee was born in the Mainland where he also received university education. He came to Hong Kong in about 1993. After doing a few jobs, he joined Apple Daily in February 1998 as a senior reporter in the Chinese news department and was subsequently promoted to assistant editorial writer and news editor (「採訪主任」). Eventually, in 2015 he became the editorial writer of the newspaper and remained in that post up to the time of his arrest. As editorial writer, his job consisted of two main areas: (1) as one of the writers of “Apple Editorial” (「蘋論」); and (2) in charge of “Apple Forum” (which was in section A of the newspaper). At the material time, Yeung Ching-kee, was the editorial writer of Apple Daily with the pen-name “LI Ping” (「李平」).

Charges

111.  On 23 June 2021, Yeung Ching-kee was arrested by the police. On 17 May 2022, Yeung Ching-kee pleaded guilty at committal to Count 2, whilst the other charge was left on court’s file.  

Li Yu-hin (“Andy”)

Personal background

112.  Andy was born in 1990. He completed tertiary education and can read and write Chinese and English. In 2019, he worked as a computer programmer and accepted jobs on a project basis. By 2019, he had accumulated savings of about HK$4 million odd.

Charges

113.  On 10 August 2020, Andy was arrested for collusion with a foreign country or with external elements to endanger national security and other offences. On 24 March 2021, he was charged with the offences of (1) conspiracy to commit collusion; (2) conspiracy to assist offender; and (3) possession of firearms or ammunition without a licence.

114.  On 7 July 2021, he pleaded guilty at committal in the Magistrates’ Court to the offence in charge (1). The other charges were left on court file upon the application of the prosecution.

Chan Tsz-wah (“Wayland”)

Personal background

115.  Wayland was born in 1991. He held a bachelor degree in law and a master degree in China Law. At the material time, he worked in a firm of solicitors as a paralegal.

Charges

116.  Wayland was arrested by the police on 10 October 2020 for “assisting an offender” but was soon released on police bail. On 15 February 2021, he was re-arrested for the offence of collusion.

117.  Eventually, on 7 July 2021 Wayland pleaded guilty at committal in the Magistrates’ Court to the charge of conspiracy to commit collusion. Upon the application of the prosecution, the other charge was left on court file.

Chow Tat-kuen (“Royston”)

Personal background

118.  Royston completed university education. He first joined the Next Digital Group in 1993 as Financial Controller. Between 1 January 2016 and 25 August 2020, he was the Chief Financial Officer (“CFO”) of the Group. Between October 2019 and 2 July 2021, he was its Chief Operating Officer (“COO”). Besides, he was also:

•  an Executive Director of D2 from 1 January 2016 to 2 July 2021 as well as its Company Secretary between 27 June 2016 and 2 July 2021; and

•  a director of the Corporate Defendants between 1 January 2016 and 2 July 2021.

After Royston resigned from all his posts in the Group on 2 July 2021, he then became its consultant up to 3 September 2021.

119.  Royston was first arrested by the police on 10 August 2020 for fraud and collusion and was released on the following day. On 2 December 2020, he was charged with D1 and Wong Wai-keung for fraud. On 17 June 2021, he was re-arrested for the present case and was again released on police bail on the following day.  

120.  On 16 February 2022, Royston was granted an immunity[74] by the prosecution on the condition that he gave true and full evidence in the trial of the fraud charge (which had already been heard in the District Court) and in the present trial.

Other named co-conspirators

121.  Purely for the sake of completeness, we should mention that the other alleged co-conspirators Law Wai-kwong, Lam Man-chung and Fung Wai-kong named in Count 2 had also pleaded guilty at the committal in the Magistrates’ Court on 17 May 2022. However, they are not witnesses in the present trial.

Assessment of accomplices

122.  Needless to say, the fact that some of the named co-conspirators have pleaded guilty can have no bearing on our decision in the respective case of D1 and the Corporate Defendants. Our task is to decide whether the present defendants are guilty or not guilty of any of the offences they face on the evidence given in this trial. The admission of guilt of the named co-conspirators does not take the respective case against D1 and the Corporate Defendants any further.

123.  On the other hand, when considering the evidence of an accomplice witness who has either pleaded guilty or been granted an immunity, we bear in mind that he or she would have an obvious incentive to fabricate evidence against the present defendants. Because of this, we would approach their evidence with caution. We ask ourselves whether any of the accomplice witnesses, especially Cheung Kim-hung and Wayland who gave direct evidence against D1, may have tailored his or her evidence to implicate the defendants falsely or whether we can be sure, despite the potential benefit to he or she of giving evidence against the defendants, that he or she has told the Court the truth. It is only when we are sure that an accomplice witness has told us the truth that we may rely on his or her evidence.

Chapter 5 – Apple Daily

Print Form and Digital Form

124.  According to the admitted facts, on 27 January 1995 「蘋果日報」 was first registered as a local newspaper[75]. Its English name, “Apple Daily”, was provided on 20 June of the same year[76].

125.  Apple Daily had both a print version (“Print Form”) and an online version (“Digital Form”)[77]:

•  As regards the Print From, between 1 April 2019 to 24 June 2021 both dates inclusive[78] (“the Period”), a total of 78,082,189 copies were printed for sale (including 1,000,000 copies printed specifically on 24 June 2021 with the cessation of operations of Apple Daily) (an average of 95,688 copies printed for sale per day), and a total of 69,044,050 copies were sold as at 10 June 2021 (an average of 86,089 copies sold per day)[79].

•  As regards the Digital Form, through the registration of domain name, Apple Daily maintained a website which published its content; and “appledaily.com.hk” continued to be in operation during the Period. When a person entered “appledaily.com.hk” via the Internet, it will be rerouted to “https://hk.appledaily.com”. At all material times, Apple Daily maintained mobile applications for use in mobile digital devices. Such applications are available to be downloaded for free by users through platforms such as Apple Store, Android Market, etc., for use in mobile digital devices such as smartphones and tablet devices[80]. When Apple Daily introduced its English version (“English News”) on 25 May 2020, the English News was made accessible to the public in the Digital Form, by pressing a link in the Apple Daily website, whereupon the webpage will be rerouted to “https://en.appledaily.com”[81]. As at around October 2019 there were about 800,000 paid subscriptions to the Digital Form of Apple Daily[82].

126.  Apart from publication in the Print Form and the Digital Form, Apple Daily also maintained various social media platforms, including Facebook, Instagram, Twitter, PSCP.TV and YouTube, where posts were published providing links to its content and articles published in the Print Form and/or the Digital Form as applicable. These links contain a reproduction, in whole or in part, of the content published in the Print Form and the Digital Form[83].

127.  Based on the above, we are sure and we find at all material times Apple Daily was a widely circulated newspaper in Hong Kong and its readership was not restricted to the local population.

128.  According to Chan Pui-man, whose evidence we accept, the news reported in the Print Form came from the Digital Form. Therefore, whilst not all the news reported in the Digital Form would be reported in the Print Form, the news published in the Print Form would be found in the Digital Form.

Chapter 6 – Senior Management of Apple Daily

Cheung Kim-hung’s role in Apple Daily

129.  At the time of his arrest, Cheung Kim-hung was the Chief Executive Officer of Next Digital Group and the Publisher of Apple Daily responsible for its operation and publication.

130.  As regards the division of responsibility between D1 and Cheung Kim-hung, Cheung Kim-hung said that D1 as the Chairman was the ultimate decision-maker and the top leader of the Group, whereas he as a CEO was to carry out the instructions given to him by D1. However, between February 2018 and May 2020, D1 was in fact actively involved in the Group making decisions and handling the operation.

131.  Cheung Kim-hung explained the respective roles of Publisher and Editor-in-chief as follows: 

•  Generally speaking, the publisher’s scope of duty was at a higher level which included supervising the whole newspaper, its operation and publication and to make sure that the editing of Apple Daily suits the policy of D1.

•  The daily duty of the editor-in-chief was to review and give approval for the articles for the daily newspaper and also to make decisions.

132.  As to whether D1 had in fact given any editorial direction or policy for Apple Daily, we would come to that in due course. Other than that, we accept the above evidence of Cheung Kim-hung as to his role in Apple Daily.

Senior Management of Apple Daily

133.  Based on the evidence of Cheung Kim-hung and Chan Pui-man, putting aside D1 for the moment, we are sure and we find that the senior management of Apple Daily, as far as news reporting was concerned, included Cheung Kim-hung and the following persons:

(a)  Chan Pui-man, the Associate Publisher of Apple Daily from April 2019 to June 2021. She was mainly responsible for the Print Form of Apple Daily. She was in charge of the selection of news for the front page (Section A1 of the newspaper) and the headline news of the local news. She was also responsible for reviewing and approving the expenditures of various departments.

(b)  Lam Man-chung (Chan Pui-man’s assistant), who held the post of Executive Editor-in-Chief. When Chan Pui-man was on vacation or taking annual leave, Lam Man-chung would take up her duties which included selecting headline news and giving approval within the scope of the Print Form of the news.

(c)  Law Wai-kwong, who was the Editor-in-Chief. He reported directly to Cheung Kim-hung and was mainly responsible for publication of news in the Chinese version of the Digital Form of Apple Daily and also supervising colleagues working under the assignment desk of Hong Kong News. Since the source of news reported in the Print Form came from the Digital Form, as a matter of fact Chan Pui-man would communicate with Law Wai-kwong.

(d)  Fung Wai-kong, another Executive Editor-in-chief who was responsible for the English news. Each day, he decided which articles from the Print Form and the Digital Form of Apple Daily were to be selected for translation and he supervised a group of contract translators. He was also required to liaise with contributors of the English News. Occasionally, he would consult Cheung Kim-hung. However, D1 had already given clear instructions on the operation and assignment desk of the English News and he said that Mark Simon and Mark Clifford would recommend contributors. Apart from editorial work, Fung Wai-kong also contributed to the “Apple Editorial” 「蘋論」 under the penname “Lo Fung”.

(e)  Cheung Chi-wai (“Nick Cheung”) was the Platform Director of Animation News and he reported directly to Cheung Kim-hung. He was also one of the directors of Next Animation Studio Limited. His main duty was the production of animation news and also non-news categories of the Digital Form of Apple Daily covering entertainment, supplement, horseracing and football matches. He was also responsible for the social media accounts (including Facebook, Instagram and Twitter) and programmes of the Digital Form like live broadcasting.

(f)  Yeung Ching-kee, the Editorial Writer of Apple Daily and his penname was “Li Ping”. He was also responsible for managing commentaries in both the Print Form and the Digital Form, for reviewing and approving articles and liaising with the contributors. In fact, the standard he used to approve the articles was the editorial policy of D1.

Chapter 7 – D1’s political stance and its influence on Apple Daily

134.  One thing has to be stressed: D1 is not on trial for his political views and he is free to hold whatever views he likes on politics. However, it would be an entirely different matter if D1 intentionally put his thoughts into action and conducted himself in such a way which was prohibited by law.

135.  It is the prosecution case that D1’s political stance and the views expressed in his articles formed the major plank of the editorial policies of Apple Daily. It is also alleged that he was using the newspaper as a platform to attack the HKSAR Government and the Chinese Communist Party and to promote his political agenda. As such, an understanding of his political views and stance could provide a useful background in ascertaining his intention and purpose at the material times. It would also be relevant in assessing to what extent (if any) he was prepared and determined to use his newspaper as a platform for spreading his political ideas and to implement his political agenda.

D1’s stance on US-Taiwan relationship

Introduction

136.  There is no dispute that D1 had a residence in Yang Ming Shan, Taipei. There is also no dispute that he established and ran Taiwan Next Magazine and Apple Daily Taiwan.

137.  However, there is evidence which shows that D1’s interests in Taiwan was not only restricted to business but also politics. As can be seen in due course, D1 supported the idea of the US using Taiwan to leverage against what he called “China’s belligerence”. It needs to be emphasized that D1’s interests or involvement in Taiwan politics is not a subject matter of any of the charges. According to Chan Pui-man (whose evidence in this regard was not challenged), when D1 expressed his views of the current social situation in Hong Kong, he would also make reference to the situation in Taiwan. This was because D1 took the stance that the fate of Hong Kong was related to that of Taiwan.

Tsai Ing-wen

138.  D1 said that he first met Tsai Ing-wen at a party organized by the US Consulate in Taiwan. That was before she was elected as the leader of Taiwan. After Tsai had taken that office in 2016, it was through the arrangement of Antonio Chiang (who D1 described as her right-hand man) that D1 had meetings with her for a few times. Those meetings were sometimes just about the policy of Taiwan which he was unable to remember clearly. D1 said that he thought it was “more a PR for her than anything” that she wanted to have discussion with him.

Antonio Chiang (江春男)

139.  D1 said that Antonio Chiang was a very famous writer whom he had known before he went to Taiwan to establish his business there. When D1 first established Next Magazine Taiwan, Chiang was their editorial writer. After that, Antonio Chiang was employed by Apple Daily Taiwan. In 2016, Antonio Chiang was the head of China Academy of Culture (「中華文化協會」), which was a pseudo-government organization of the Taiwan Region.

140.  There is evidence to show that Antonio Chiang had been receiving substantial sums from D1’s company while he was acting as an aide to Tsai Ing-wen. In cross-examination, D1 was shown a series of emails on 25 March 2020 among Chen Chuan-chin (Johnny) of Next Media Taiwan on the one hand and Hung Chi-keung (Dennis), Cheung Kim-hung and Royston on the other[84]. According to those emails, D1 was said to have told Ip Yut-kin (the then Chairman of Next Media Taiwan) that Next Media Taiwan should pay Antonio Chiang a sum of NT$209,606 per month even though he was not writing anything for them. There was also a document showing that Antonio Chiang had been paid the monthly payment as “consultancy fee” between 27 November 2017 and 29 February 2020 (for a total of NT$5,868,968)[85]. D1 said in Court that there was a misunderstanding in that they thought Antonio Chiang had been of some use to D1 and that was why they continued to pay him even though he did not contribute any articles. D1 said that the payment was meant to be for editorial writings. When D1 realised that Antonia Chiang had been paid without writing, he asked that the payment be stopped immediately[86]. D1 denied that he had asked people to continue to pay Antonio Chiang even though the latter was not writing any editorials for Apple Daily Taiwan.

Using Taiwan as a “leverage”

141.  On 12 December 2016, D1 messaged Antonio Chiang by WhatsApp and said[87]:

“I actually just want to emphasize that, now is time for China breakthrough. More pressure I’m sure will build up as if US is about to use Taiwan to leverage China’s North Korea and South Sea belligerence. There will be loose talks for those soldiers move out of Japan move to Taiwan. China needs to solve the present deadlock more than us now. China wants no war. Now is time to move to let local governments have the rights to open the door now shut. China’s alacrity is there now. Ok. Let’s see after my Europe trip. I may stop by Washington hear more. Cheers. Jimmy”

142.  In D1’s examination-in-chief, when asked by his counsel whether he was advocating greater military presence of the US in the region in order to threaten China, he said that what he was saying was that the US actually was increasing their presence already now at that time in Asia Pacific. He thought that the fact that the US was increasing their military presence in Asia Pacific would reduce the risk of conflict with China.

Arranging Paul Wolfowitz and Jack Keane as Tsai’s consultants

143.  D1 said that as Antonio Chiang mentioned to him that Tsai Ing-wen would like to know more about the sentiment and attitude of the Trump administration toward Taiwan, D1 introduced Jack Keane and Paul Wolfowitz to Tsai[88].

144.  Both Paul Wolfowitz and Jack Keane were D1’s personal friends. According to D1, Paul Wolfowitz was formerly US ambassador to Indonesia and Deputy Secretary of Defence. He has extensive experience in dealing with Asia policy in the United States. D1 knew Paul Wolfowitz offhandedly before he hired the latter to be his consultant when he went to Myanmar looking for investment opportunity back in 2013. D1 said Jack Keane was formerly a US General and he became the personal advisor to President Trump in January 2017. In cross-examination, D1 said that he believed at the time that Jack Keane was close to Trump.

145.  D1 was obviously aware of the sensitivity of a US retired general (whom he believed was close to the Trump administration) giving advice to the Taiwan region. This is because D1 texted his much-trusted personal assistant Mark Simon on 5 January 2017 and said[89],

“Mark,

I’d a wonderful dinner meeting with General and Paul. Just wonderful! He’s going to Taipei with Paul and work on the project with liaison to Trump, though the consultancy will be independent and non political. This must be handled with strict confidentiality because once the media picks it up will destroy it. Please reach out to Paul to structure the needed platform. I’ll talk to you more when I see you in New York. Cheers. Jimmy”

146.  D1 was eager to see the strengthening of the ties between the US and Taiwan, military or otherwise. On 21 July 2017, D1 informed Antonio Chiang that[90]:

“Paul and Jack are ready to make the trip. Please make it as a routine that they spend 3 days each time with the president and her people concerned. I’ll come at the end to do follow up with them.”

On 19 August 2017, D1 messaged Antonio Chiang again and advised[91]:

“Objective: ten year contract secures energy Taiwan’s security (nobody can stop America’s delivery. And their price is the most competitive because the increasing advances of fracking). It creates American jobs and export, gets Taiwan into Trump’s radar. That gives the chance and excuses for the Boss to talk with Trump personally more often, through John Kelly. The modernization of military mentality starts parallel with weapon modernization. Without a modern military knowledge-back mindset, modern weapons are not used or applied efficiently. Of American generals, some have talents can help modernize the present outdated military outlook, with the new knowledge they can bring. These generals are the most potential weapon America has produced, well versed with the information－technology warfare, both in practice and knowledge. And this brain weapon Taiwan can procure at a very inexpensive price. Recap, just in case. Thank you.”

147.  D1 was not only eager to have Wolfowitz and Keane acting as Taiwan’s consultants, but was also paying for their service. On 23 April 2018, Mark Simon texted D1 and said, among other things, that[92]:

“1) Paul and Jack will be in Seoul May 2nd to 4th and Tokyo May 5th through 9th. Taiwanese reps will be in Korea and Japan as well. Part of Joseph Wu idea. Will brief in person.”

Later on the same day, Royston sent a WhatsApp message and asked D1 to confirm, among other things, a request for US$400,000 for Paul Wolfowitz and Jack Keane. D1 replied, “Royston, Ok. Thanks. Jimmy”[93].

148.  On 8 May 2018, D1 texted Mark Simon and asked whether “Antonio” was in Japan with “Paul” and “Jack” and whether Mark Simon were there too. Mark Simon replied that he was there but “Antonio” was not. He also informed D1 that “Paul & Jack have a lot of pull up here. Very senior folks. Will brief you in person.”[94] On 10 May 2018, Mark Simon sent D1 what he said were some notes from “Paul” and “Jack” and he would brief D1 on them[95]. On 14 May 2018, Mark Simon asked D1 if he was free in office. D1 replied that he would be in office in five minutes and he asked Mark Simon to see him when he was free[96].

149.  On 16 May 2018, D1 texted Antonio Chiang and said[97]:

“Paul and Jack have shared some of their thoughts with me. They believe that now, with current the Trump administration, is the best time for Taiwan to deepen diplomatic relations with the U.S., but Taiwan is too worried that the mainland may hinder the U.S. from taking further actions, so they asked me to talk to you first so that it will be easier for them to convince The Lady when they come in late July. Now Jack has close relations with the Trump Team [he meets with them twice a week at the White House] and knows that there are many possibilities that can change the status quo, such as inviting The Lady to the U.S. to attend private parties of dignitaries like Rubio’s, or to speak to women/human rights organizations on issues such as democracy and human rights. Japan promised to follow up as usual after the U.S. takes these actions. But Taiwan is too scrupulous. For example, when the new AIT building was inaugurated and Bolton’s deputy wanted to observe the ceremony, he was politely turned down. Jack knew that Bolton himself would have come if he had been invited. I’d like to talk with you about this piece of information. Is it possible to ask Joseph to talk about this over dinner on the 27th? Thanks. LAI”

150.  On 20 July 2018, Mark Simon informed D1 that there was a “change of schedule for Jack & Paul. They will be in Taiwan the 1st to the 5th of August.”[98]  Then on 23 July 2018, Mark Simon asked whether the trip was worth going forward and if not, he would start shutting it down[99]. To this, D1 replied[100],

“Let’s see how the Taiwanese part is reacting to their combing trip. If they’re not keen there’s no reason to go on. From what I gathered from Antonio they’re not keen at all. Even to make a meeting with Tsai is very difficult. It’s like deigning them a good will by giving some me face. That doesn’t make sense. Thanks. Jimmy”

151.  On 30 July 2018, Mark Simon asked if D1 would want to have dinner with “Jack” and “Paul”. D1 said that he could have dinner with them on Saturday the 4^th. D1 asked if they got “all the appointments needed including Tsai”. Mark Simon informed that “Jack” and “Paul” would see “Tsai” on Friday the 3^rd and Foreign Ministry on Wednesday or Thursday.[101]

152.  On 26 March 2019, D1 asked Mark Simon to urge “Jack” and “Paul” to make the trip soon; otherwise “Tsai” would be too absorbed by the “relectionary (sic) barnstorming” that she would not be able to do anything with their advice. Mark Simon replied that he would “push”[102]. On the following day, Mark Simon reported that “Paul was very open” but “Jack’s people are a bit to cut throat, and it’s also quite obvious that the money means quite a bit to Jack.”[103] On 2 April 2019, Mark Simon reported that “Jack” and “Paul” were working out dates for trip over[104]. On 7 April 2019, in reply to D1’s query as to the progress of the proposed trip of “Paul” and “Jack”, Mark Simon said they were “thinking late May for a few days”[105].

153.  Apart from D1’s aforesaid approval of a request for US$400,000 for Paul Wolfowitz and Jack Keane on 23 April 2018, there is also other evidence to show that he was willing to pay for their service:

(1)  On 17 May 2018, D1 asked Mark Simon, “What’s this: Payments made to 2 US Consultants 3.14m HKD”[106]. Mark Simon replied, “US consultants are Jack & Paul.”[107]

(2)  On 19 July 2018, D1 asked Mark Simon what the “Remittance to Canada for special projects in US$14.90 Million” was about as appeared in “Royston’s statement”. Mark Simon explained that the sum was for “Jack” and “Paul” and that[108]:

“It’s US $750k per year each, plus we had the gift payment to Jack to complete, which was US $250K –

So US $1.75m targeted there which is HKD $13.5m

And we also pay their reimbursements for trips &Rupert for the remaining HKD$ 1.4M

Total $14.9M”

(3)  On 19 July 2019, D1 asked, among other things, about a “fund remit to Canada US$850K”. Mark Simon explained, “This is to repay for partial Paul payment and travel expenses for Jack/Paul for two trips. (Paul just recently asked for his 2^nd year).”[109]

We are fully alive to the issue that the contents of the above WhatsApp is not evidence of the truth of the contents. However, they are relevant to D1’s state of mind. Given that D1 raised no further queries after learning what he had been told by Mark Simon, we considered that the only reasonable inference to be drawn is that D1 agreed to those payments for the stated purpose.

John Bolton

154.  Also on 5 January 2017, D1 shared with Antonio Chiang the note which he had prepared for his meeting with John Bolton on the following day. That note started with the following:

“Strictly confidential.

Without America’s military presence on its land, Taiwan lives in turmoils next to a dictatorial China prone to constant sabrerattling. With America’s military presence on our land as a leverage of its Asia pivot strategy, it creates condition for us to secure peace with China. Without America taking an interest in Taiwan but the ambivalence of last 10 years, China will threaten Taiwan endlessly with impunity. …”

155.  In cross-examination, D1 said that he did not intend Antonio Chiang to pass the note to Tsai Ing-wen and the latter “was too cautious about this kind of approach”. D1 said that he had known John Bolton for a long time and they first met at a meeting of a think tank in Washington. At the time of the aforesaid WhatsApp message, John Bolton was not yet in the Trump administration and he only became the national security advisor in 2018. D1 said that at the time the idea of US having a more prominent military presence in Taiwan had already been floating around in the media. He asked Antonio Chiang to keep it confidential to protect his (D1’s) position as a Chinese in Hong Kong.

156.  D1 agreed that he met up with John Bolton on 6 January 2017. D1 was shown a WhatsApp message from Mark Simon on 17 January 2017 which contained an article which appeared to have been written by John Bolton on 16 January 2017 where it said[110]:

“America could enhance its East Asia military posture by increasing U.S. military sales to Taiwan and by again stationing military personnel and assets there, probably negotiating favorable financial terms.”

When D1 was asked whether the content of this article was similar to that contained in his note, he said that a similar idea that was already prevailing in some of the comments in the US media at that time.

Recommending James Cunningham

157.  It was not only that D1 was eager to see the strengthening of relationship between the US and Taiwan, he also aimed to help Taiwan reset “constant contacts on the diplomatic floor in Washington”.

158.  In cross-examination, D1 agreed that in around March 2018 he was eager to have Taiwan engage James Cunningham to re-establish a diplomatic channel for Taiwan[111]. On 21 August 2017, D1 shared with Antonio Chiang a webpage in which James Cunningham was described as an “American diplomat”.[112] Then on 28 August 2017, D1 texted Antonio Chiang again and said[113],

“A long-term energy contract, as Taiwan is back into the radar, is to put light in Washington’s eye. It prompts constant communication with Washington. Recruit retired American generals to upgrade military mentality as a base to upgrade military in general. The last is to hire a top-notch diplomat to reset constant contacts on the diplomatic floor in Washington. These are the points I want to make to the boss for. Actually you can convey it clearly to her. I’ve no need to see her. But those are very good advice worth boss’ thought on them. Cheers. Jimmy”

D1’s “Live Chat with Jimmy Lai” programme (“live chat”)

159.  We will come to D1’s live chat in due course. It suffices for us to say at this juncture that even after the enactment of the NSL in July 2020, D1 was making open statements about using Taiwan as a leverage against China. It is also clear that he bought into the narrative of the US about China as a threat to the West in its entirety.

160.  After considering all the evidence including but not limited to the above, we find that D1’s position regarding Taiwan had not changed after the NSL.

D1’s views and stance regarding Hong Kong

161.  D1 had his own column, “Sink or swim, Smile” in Apple Daily which was published every Sunday in the Supplement. Cheung Kim-hung said the contents of D1’s articles were mainly to oppose the HKSAR Government and the Chinese Communist Party. In this regard, it was also Yeung Ching-kee’s evidence that D1 expressed his political views very specifically in his articles. Yeung Ching-kee said that he, as the one in charge of the Editorial and Apple Forum, definitely needed to read D1’s articles, as he would not adopt a stance opposite to that of D1.

From paparazzi to social activism

162.  According to Cheung Kim-hung, prior to 2014 the image of Apple Daily was more about paparazzi and entertainment. Shortly before and after the Occupy Central Movement in 2014 (which Cheung Kim-hung described as the “watershed”), however, D1 became more active in making editorial policies and he used Apple Daily to encourage people to seek for democracy and to take to the streets to put up resistance. Thus, Apple Daily “metamorphosed” into a newspaper that opposed the HKSAR Government and the Central Government. From that time onward, the management of Apple Daily also ran the newspaper according to this stance adopted by D1.

163.  In cross-examination, Cheung Kim-hung disagreed on the proposition that Apple Daily had always encouraged people to take to the streets to have their voices heard and that there had been no sea change in its policy after 2014. Cheung Kim-hung said that as the then editor-in-chief, he personally felt in 2014 that there was a drastic change in the atmosphere. In fact, there was then a campaign for universal suffrage planned and worked out by D1 that lasted as long as half a year. Initially, D1 instructed him to rent spaces on the external wall of some buildings to make publicity encouraging people to fight for universal suffrage. When the White Paper on the “One Country and Two Systems” was issued by the Central Authorities, D1 also asked him to hire large-sized trucks to move around Hong Kong doing some sort of performance art opposing the White Paper. Later, since the tasks were not something which Cheung Kim-hung could handle, D1 handed them over to Mark Simon. It was also in 2014 that D1 participated in the “Occupy Central” movement till the end when he was taken away by the police. For the aforesaid reasons, Cheung Kim-hung considered that Apple Daily underwent a drastic change in 2014 which was different from the previous years when it had only encouraged people to take part in night vigils on June 4 and the processions on July 1.

164.  In the same vein, Chan Pui-man said during the “Occupy Central” movement in 2014, D1 participated in it personally and became part of the news. After that, D1 continued to step forward at the forefront of the social movement.

Mike Pence’s 2018 speech and its impact

165.  According to Chan Pui-man, D1 was an advocate for peaceful protests or demonstrations before 2019 but he showed more understanding toward non-peaceful protests or demonstrations. She cited the incident of the storming of the Legislative Council on 1 July 2019. As D1 did not want the movement to lose momentum, he therefore instructed that more coverage be given to the thoughts of the demonstrators so that the public would have a better understanding of them. At that time, there was among demonstrators the slogan “no separation between the peaceful and the valiant” (「和勇不分」), which meant they would not be divided but would stay united. Because of D1’s support of the movement, he also agreed to this saying. Chan Pui-man acted accordingly in her work on the Print Form.

166.  Yeung Ching-kee provided another perspective. According to him, D1 is a very successful and astute businessman who had a very good grasp of market changes and customers’ demand. According to Yeung Ching-kee, D1 thought that Pence’s speech represented a whole change of the United States’ policy. Therefore, the change of the global situation should be grasped and that there should be a change in direction concerning the news and the reporting style.

167.  Yeung Ching-kee observed that D1’s political stance became more radical after Mike Pence, then Vice-President of the United States, had made a speech at Hudson Institute in October 2018[114]. Yeung Ching-kee referred to his WhatsApp exchange with D1 on 5 October 2018[115], where D1 told him that the United States had “turned over the table” (「反檯」) and that would lead to Japan and Western countries changing their policy towards China. In D1’s view, the US would seize the chance when Xi Jinping was in a weaker situation and changed its policy towards China[116]. That is, “to kick a man when he is down” （「落井下石」）[117]. As a result of the aforesaid exchanges with D1, Yeung Ching-kee drafted an editorial: “The US issues a declaration of war/ Hong Kong braving the gunpoint” (「美國發宣戰檄文/香港挺身撞槍口」) responding to the speech of Pence and sent it to D1[118]. There being no objection from D1, the editorial was published on the following day.

The anti-ELAB movement

168.  According to Cheung Kim-hung, during 2019 and 2021, D1 opined that the 2019 Extradition Law Amendment Bill (“ELAB”) was a crackdown on democracy and freedom in Hong Kong. This, D1 told the management of Apple Daily that the Central Government wanted to use this legislation to bring defiant people back to China. D1 further said that the business community was also very much concerned and that if this law was enacted, the media could not survive. On the international front, D1 wanted to make use of Apple Daily to draw the attention of Western democratic countries to the ELAB, hoping that they would take actions against the HKSAR Government and the Central Government which could go as far as imposing sanctions on the officials of Hong Kong SAR Government and the Chinese Government in order to scare them off and to prevent them from doing anything wantonly. According to Cheung Kim-hung, D1 expressed the aforesaid views between March and April 2019 in “lunchbox meetings” of Apple Daily as well as privately in D1’s office when there were only the two of them.

169.  Cheung Kim-hung was cross-examined on three of Apple Daily’s reports which appealed for support of anti-ELAB protests published respectively on:

•  15 June 2019[119]

•  1 July 2019[120]

•  14 August 2019[121]

170.  It was put to Cheung Kim-hung that Apple Daily had always been calling for peaceful protests. As to this, Cheung Kim-hung said that at the later stage when the violence became more intense, D1’s stance was that there should not be any division between the peaceful and the valiant protestors. Apple Daily also followed D1’s stance, that is, its reports and comments of the valiant were sympathetic and relatively supportive of the protestors. Yet, Cheung Kim-hung agreed that he told Yeung Ching-kee on 14 November 2019[122] and 17 April 2021[123] that violence was not part of Apple Daily’s stance.

171.  In cross-examination, Chan Pui-man agreed that she believed in human rights, press freedom and transparency in government. Those were also the values espoused by Apple Daily and shared by Cheung Kim-hung, Law Wai-kwong, Lam Man-chung and Fung Wai-kong. Chan Pui-man agreed that Apple Daily was often critical of the government, but she said it was done in the hope that the government would change its policy. She said that reports in Apple Daily highlighting police brutality were made in an effort to persuade those in power to rein in excessive force. There were also many articles in Apple Daily critical of the ELAB. Those were published in the hope of persuading those in power that the bill was not a good idea and that it should be withdrawn.

172.  Chan Pui-man agreed that she wrote an article[124] for the 20^th anniversary of Apple Daily in 2015 in which she said, “Apple Daily has on multiple occasions exposed scandals of the rich and powerful not only because they are juicy but more importantly because we believe in the role of the Fourth Estate.”  She agreed that that was as true in 2015 as it was up until the newspaper was shut down.

173.  Yeung Ching-kee’s general impression regarding the anti-ELAB movement, was that the newspaper encouraged resistance and sought the withdrawal of the bill. D1 in his own column often appealed to the public to take to the streets. At the very beginning there was a dispute concerning the separation between the peaceful and the valiant. Later, D1 in his column and Apple Daily adopted an attitude which was more tolerant of the valiant. There was then in the community the slogan of “no separation between the peaceful and the valiant”, namely “no condemnation, no splitting up, no informing against the other party”. These three “no separation” were in fact implemented in the newspaper reports as well as the commentaries of Apple Daily. Even after the promulgation of the NSL, D1 simply did not pursue balanced reporting.

D1’s speech at FCC

174.  On 20 May 2019, D1 gave a speech at the Foreign Correspondents’ Club about the ELAB. The event was covered by Apple Daily on 21 May 2019 where D1 was reported to have said[125]:

“(I) never regarded Carrie LAM as evil in the past. But now I can only say that Carrie LAM is extremely evil; (I) cannot think of other description.”

D1 meeting Mike Pence and others

175.  In Cheung Kim-hung’s examination-in-chief, his attention was drawn to a Bloomberg report titled: “Trump Team Sends Defiant Signal to Beijing by Meeting Activist” which D1 forwarded to him on 11 July 2019[126]. That report which was originally sent by Christian Whiton[127] to Paul Wolfowitz, was about D1’s visit to the US and his meetings with Vice-President Mike Pence and Secretary of State Mike Pompeo and Security Adviser John Bolton[128]. It was written, among other things, that:

“Jimmy Lai, a Hong Kong publisher and democracy advocate, met with National Security Advisor John Bolton on Wednesday, after meetings earlier this week with Vice President Mike Pence, Secretary of State Michael Pompeo and Republican Senators Ted Cruz, Cory Gardner and Rick Scott.

U.S. administrations rarely offer such a warm welcome to any but the most senior visiting dignitaries, and Lai’s meetings with an array of top officials was even more unusual given that he holds no government position.

While the administration officials didn’t appear publicly alongside Lai, all three posed for photos with him. The succession of meetings appeared calculated to send a message of support from the administration for protests that have wracked Hong Kong in recent weeks, with hundreds of thousands of people hitting the streets demanding protection for personal freedoms and opposition to an extradition proposal in the former British colony.”

Cheung Kim-hung recollected that the staff members of Apple Daily were excited about the news, as they saw that D1 could actually reach the White House and relate the situation of Hong Kong to senior officials there. They thought therefore that there was an actual hope in the anti-ELAB movement.

176.  Chan Pui-man said that Apple Daily published a second edition on 9 July 2019[129] specifically for the purpose of covering D1’s meeting with Mike Pompeo, then US Secretary of State. This was because D1’s arriving in the US and meeting with Mr Pompeo was an important piece of news. In light of the articles written by the foreign news outlets that D1 had previously forwarded to her, she believed that D1 was very concerned about the views of the international community relating to the movement in Hong Kong. That was why they dealt with the news in this way.

177.  On 11 July 2019, Chan Pui-man also received the aforesaid Bloomberg report from D1[130]. On the following day, Apple Daily covered the news of the meeting between D1 and John Bolton with the headline: “Lai Chee-ying meets John Bolton, urging the Trump administration to support Hong Kong”.[131] According to the report, during D1’s said trip to the US, apart from Pence[132], Pompeo and Bolton, he had also met with Republican Senators Ted Cruz, Cory Gardner and Rick Scott.  

Covid-19 pandemic

178.  As regards the outbreak of the Covid-19 pandemic in about late January or February 2020, Yeung Ching-kee said that the angle of Apple Daily was mainly to criticise the Chinese Government for the cover-up which caused a big mess in the world.

179.  Support for this part of Yeung Ching-kee’s evidence can be found in various articles written by D1 as well as his public statements made on various occasions. For example, in the article titled “The plague of Wuhan, the death knell of the CPC” in his own column “Sink or Swim, Smile” dated 9 February 2019, he wrote[133]:

“ On the premise that the CPC is trying to maintain stability, lies are rampant and the truth is blurred in the epidemic. With different levels in the bureaucratic structure and lies overlapping in different levels, even the Central (Government) does not know how serious the epidemic disaster is. It is difficult to convince the masses when the country is ruled with lies and without integrity. What Emperor XI relies on is totalitarian manipulation, which absolutely stifles people’s freedom of information, (thereby) turning the people to (those who) blindly follow like sheep, and it would then be easy to govern. Emperor XI thinks that by “giving the common people enough food and clothing”, (he) can infringe on their human rights, deprive them of their right to know and dominate them tyrannically (when they just) follow blindly as if the people have no right to food and clothing originally, and once they get the food and clothing, they are to sign a slave deed automatically.

Even WHO was informed of the discovery of the virus by the Wuhan government, why were the people kept in the dark leaving them with no defense (?) (Why did they) let the virus run rampant spreading from one person to another? The government of Emperor XI certainly does not care about the people. But at the same time, the information is so concentrated that he can receive little of the accurate truth, (and is therefore) unaware of the seriousness of the situation. (People) are numbed by the structural behaviors of lying which (reduces their) alertness about the seriousness of the situation. It’s only when the epidemic has worsened to the point where it might be difficult to cover it up any longer that the WHO is notified in order to avoid (the matter) being divulged and losing face. He thought about face but not (his) people. It’s of course because (for) face, it’s a national affair when compared to the common people who are just the grassroots!

…

No one wants an outbreak of virus to become a plague, and if it does happen, it is man-made rather than providential. This is all a consequence of the totalitarian closure by Emperor XI. It is purely a feudal minded eclipse of the past to still have the illusion to control the minds of the people in a world of information transparency. He rules the country with lies, but can he still rule the country when this virus has ruined his lies? Isn’t this epidemic a death knell for Emperor XI, or even the CPC? We’ll see, and history will soon tell.”

(「肺炎疫情在中共維穩大前提下，謊言泛濫真相模糊，層層官僚架構層層謊言重疊，肺炎災情有多深重，就是中央也不知道。謊言治國不講誠信難服眾。習帝靠的是極權操控，絕對扼殺人民資訊自由，把人民變成盲從的羊群，管治便乾脆利落。習帝以為「給庶民溫飽」便可殘害人權，剝奪人民知情權，盲從任由他專橫支配，恍若人民本來是無溫飽權利的，溫飽了自動要簽賣身契。

武漢政府發現病毒，為甚麼連世衛被告知了，人民卻被蒙在鼓裏，毫無防禦，任由病毒肆虐擴散到人傳人？習帝政府固然沒將人民放在眼裏，但同時資訊太集中，他能接收到準確真相也很少，不知狀況嚴重，謊言結構性的行為麻木了事態嚴重的警惕。到疫情惡化至恐防蓋不住了，只好通知世衛，避免穿崩失去面子。他想到面子卻沒想到人民，當然，面子國家大事，相比老百姓只是蟻民！

…

沒有人想肺炎爆發成瘟疫，若發生，是人為而不是天意。這全是習帝極權封閉造成的後果。在資訊透明的世界，仍妄想控制人民思想，純粹是封建思想的食古不化。他以謊言治國，這肺炎毀了他的謊言，他還能治國嗎？這疫情是否習帝，甚至中共的喪鐘？等着瞧吧，歷史將快有判斷。」)

D1’s hope for foreign support

180.  Cheung Kim-hung was asked about his WhatsApp exchanges with D1 on 17 May 2020 concerning D1’s draft article written for the special edition of Apple Daily celebrating its 25^th anniversary[134] where D1 wrote:

“… It occured to us: Yes, one way for foreigners to support the democratic movement in Hong Kong is to subscribe to the Apple Daily. The more foreign subscribers, the more political protection there may be. Now the CPC is ‘closing in’ …”. [135]

“… The CPC is bold and confident, but they are also bold and confident when they lie. In short, they are always be right. Yes, we do not have (the support) any foreign power, but now there is no choice, it has to be (about) foreign power! The more support we have from foreigners, governments and politicians, the more support we have from worldwide public discourse and diplomatic attention, the more (likely) we can preserve the freedom of the rule of law in Hong Kong. Long live foreign powers”.[136]

Cheung Kim-hung understood that “foreign support” was a reference to subscription of Apple Daily by foreign politicians or government officials. According to Cheung Kim-hung, D1 reasoned that a large readership of the English News would be a sort of protection for Apple Daily in that it would cause foreign political figures and officials to speak up for Hong Kong, so that in case the Chinese Communist Party interfered with the newspaper, that would attract sanctions from foreign countries.

181.  In cross-examination, Cheung Kim-hung was referred to D1’s speech to the staff members on 18 June 2020 in Next Digital Building when they celebrated the 25^th anniversary of Apple Daily. On that occasion, D1 told his staff members that “no one would force you how to do, I will not tell you what to do” (「冇人會迫你哋點樣去做，我唔會叫你哋點樣去做」) and that “Apple Daily nowadays are attributed by you” (「蘋果日報到今日做到咁樣，係你哋造成嘅」), Cheung Kim-hung agreed that Apple Daily became what it was because of the collaboration of the staff. However, they did this under the leadership and instructions of D1.

The NSL

182.  It is not in dispute that D1 made no attempt to hide his stance against the introduction of the NSL which he said would have the effect of curtailing personal and press freedom in Hong Kong. Chan Pui-man shared that view and she agreed with defence counsel that D1 tried his best to prevent the NSL from coming into effect. She said that before the enactment of the NSL, D1 suggested that pressure, including sanctions, could be brought to dissuade those in power from enacting the NSL and some of those views of D1 were published in Apple Daily. To Chan Pui-man’s knowledge, at that time there was not any law against calling for sanctions. She agreed that Apple Daily’s criticism of the NSL prior to its enactment was made with a view to persuading those in power not to enact it. However, she added that it was D1 who tried to achieve that through Apple Daily.

183.  According to Yeung Ching-kee, from April 2019 and onwards D1 had given other instructions to him and that included designating certain articles and writers. After the promulgation of the NSL, D1 also designated writers who were not satisfied with the NSL, e.g. Au Ka-lun.

Chapter 8 – Meetings in Apple Daily

184.  According to Cheung Kim-hung, the publication of a newspaper would involve a lot of journalistic materials, such that decisions had to be made on what to report, the angle of reporting and the scale of reporting. Those decisions were informed by the editorial policy of the newspaper. Therefore, a lot of meetings would be held before those decisions could be made.  

Overall workflow

Daily Meetings

185.  Cheung Kim-hung and Chan Pui-man gave an outline of the overall workflow of Apple Daily at the material time. Their accounts in this regard, which are consistent with each other and uncontroversial, can be summarized as follows:

(a)  “Evaluation meeting” (「鋤報會」)

An evaluation meeting was held at 2.30 pm on each day and it lasted for about half an hour. It was attended by Chan Pui-man, Law Wai-kwong, Lam Man-chung and the heads of various departments. The purpose of the meeting was to review the newspaper published on the day to see if there was anything which had room for improvement.

(b)  “Preliminary meeting” (「初會」)

A preliminary meeting was held at about 3 pm on each day immediately after the evaluation meeting. It was chaired by Chan Pui-man and attended by Lam Man-chung, Law Wai-kwong and heads of various departments such as the breaking news section, Hong Kong news, international news, news on the cross-strait, court news and finance. Each section would then report on the important news of the day. They would then discuss the news to be reported, the angle of reporting, the follow-ups and the way to embellish the reports. The angle of reporting was related to the editorial policy of Apple Daily.

(c)  “Pre-editing meeting” (「編前會」)

The “pre-editing meeting” was held sometime between 5 pm and 5.30 pm on each day and was attended by Chan Pui-man and Lam Man-chung. It was to decide on the contents to be published on the front page and section A of the newspaper. Nevertheless, further changes of the positioning of those news reports could still be made even after this meeting.

In cross-examination, Chan Pui-man agreed that D1 would not be present in any of the aforesaid meetings. Nor would minutes of those meetings be circulated to him. Moreover, D1 would not have the draft newspaper before it went to print.

“Planning meeting”

186.  According to Cheung Kim-hung and Chan Pui-man, in addition to the aforesaid daily meetings, there was also a weekly “planning meeting” for the Print Form held every Tuesday. Hosted by Chan Pui-man, the “planning meeting” was attended by Lam Man-chung, Law Wai-kwong and the heads of various departments. The main purpose of the meeting was for various departments to plan for the coming week regarding news reporting and the weekly specific topic for “Apple Forum”. Chan Pui-man and Lam Man-chung would see if any key point news was missing and consider the proposed angle of reporting.

187.  According to Yeung Ching-kee, however, in reality there was very little discussion at the “planning meeting”. In case Yeung Ching-kee was not attending, he would communicate with Chan Pui-man or Lam Man-chung by WhatsApp. Yeung Ching-kee would report on the topic of the “Hot Topic of the Week” for the following Saturday. Occasionally, there would be instructions or opinions from the senior management and Yeung Ching-kee would definitely follow those. Once the topic of the “Hot Topic of the Week” was decided, Yeung Ching-kee would approach suitable writers. Articles by freelance writers would also be used if suitable. The senior management might suggest writers to him, but that would be rare.

188.  It is not in dispute that D1 had never attended the “planning meeting”. Yeung Ching-kee said that Cheung Kim-hung did not attend the meeting at a later stage either. However, Yeung Ching-kee said that if there were any instructions from D1, Yeung Ching-kee would follow them.

189.  In due course, we will consider the prosecution case, which is in the main based on Cheung Kim-hung’s evidence, that the decisions made at the preliminary meeting and the planning meeting were based on the editorial policy set by D1.

Lunchbox meetings

190.  Cheung Kim-hung, Chan Pui-man, Yeung Ching-kee and Royston all testified (and there is little dispute) that during the charge period of Count 1, Apple Daily had “lunchbox meetings” on a regular basis. Cheung Kim-hung agreed in cross-examination that the first “lunchbox meeting” was held on 18 October 2018.

191.  There is no dispute that there were different lunchbox meetings for different departments and purposes, examples of which included Apple Daily, Next Magazine, Food and Travel and Advertising. Those meetings were held at about 12:30 noon on Thursday at the VIP Room on the 5^th Floor of Apple Daily’s building. Except when D1 was away and Cheung Kim-hung was asked to step in, the former would be the host. Regular attendees of all lunchbox meetings included Cheung Kim-hung, Royston and Connie Chan (head of IT section).

192.  There is also no dispute that for each of the lunchbox meetings, there would be a separate chat group or channel opened by D1 under Slack (a software for workgroup communication used by the Group)[137] for those who were going to attend so that members could raise questions and issues for D1 to address and dealt with at the upcoming lunchbox meeting.   

The evidence of Cheung Kim-hung

193.  According to Cheung Kim-hung, at a lunchbox meeting, after people had their lunch D1 would start by expressing his views on the current situation and his political stance, during which he would tell the management staff the editorial policies according to the situation at the time. The management would then convey the message to other managerial staff. Everyone would then work on D1’s instruction in their respective duties. Usually, Cheung Kim-hung would be the one assigned to take the notes of the lunchbox meeting and to follow up on the decisions made thereat.

194.  Cheung Kim-hung said that D1 was the one who made those policies because the latter was the founder of Apple Daily and also the largest shareholder of the company having 70 percent shareholding. He described D1 as the “helmsman” of Apple Daily.

195.  Cheung Kim-hung said that subsequent to D1’s visit to the US officials in July 2019, he mentioned more about sanctions. For example, D1 mentioned in the lunchbox meetings of Hong Kong Apple Daily that he supported the Human Rights and Democracy Act regarding Hong Kong imposed by US President Trump and the cessation of ammunition supplies to the Hong Kong Police. D1 considered Trump as a person of action and not merely words. Whilst D1 did not ask the senior staff members to do anything in concrete, he made reference of the aforesaid when he was commenting on the current affairs.

The evidence of Chan Pui-man

196.  According to Chan Pui-man, she, Lam Man-chung and some other colleagues would be asked to attend lunchbox meetings concerning the Printed Form once every several weeks. If a particular meeting was about the Digital Version, then other colleagues would attend rather than Chan Pui-man. After each lunchbox meeting, Cheung Kim-hung would prepare a summary consisting of the key points mentioned in the meetings which would be distributed to all the attendees of the lunchbox meeting by Slack.  

197.  As to the nature of themes discussed in the lunchbox meetings which Chan Pui-man had attended, she gave an example of turning the newspaper into something more like a magazine.[138] Upon clarification sought by the Court, she said that general angles of reporting would also be discussed.

Cross-examination of Cheung Kim-hung and Chan Pui-man on D1’s giving editorial directions

198.  Both Cheung Kim-hung and Chan Pui-man were cross-examined on the basis that D1 did not give any editorial directions at lunchbox meetings. It was put to them that lunchbox meetings were held to deal with low staff morale and business development.

199.  As regards Cheung Kim-hung, he disagreed that lunchbox meetings were set up so that D1 could have personal communication with low-level and mid-level employees. Cheung Kim-hung did not see any linkage between the staff morale and the lunchbox meeting. Cheung Kim-hung said that the majority of those who attended the lunchbox meetings were senior staff members. Although Cheung Kim-hung agreed that the majority of the lunchbox meetings was not related to the Digital Form or Print Form of Apple Daily, he disagreed that lunchbox meetings were, in the main, business development meetings.

200.  As regards Chan Pui-man, it was put to her in cross-examination that the reason why D1 set up lunchbox meetings was to gather the views of staff members. As to this, she said that lunchbox meetings were more about D1 expressing his philosophy of business operation as well as his views on the social situation. She said that D1 would also express his views on the current social situation. Chan Pui-man gave the example of “police brutality” during the resistance movement. Chan Pui-man said that D1 was very concerned about that topic and he asked them to dive deep into it.

201.  Chan Pui-man agreed that D1 was concerned about improving business and contents of the newspaper and that in May 2018 D1 asked her to draft a questionnaire to collect the views of colleagues. On the other hand, she did not agree that lunchbox meetings were not for the purpose of D1 to issue editorial directions. She said that D1 would talk about how to improve the newspapers as well as strategies concerning business operation. However, he would also give editorial directions. For instance, when D1 touched upon the topic of how to improve the newspaper, then inevitably he would also touch upon how to cover news.

202.  As to whether those editorial directions, if any, would be put in writing after the meeting, Chan Pui-man said there would be a brief summary of the key points. By “editorial directions”, she meant very specific directions about what to report or not to report, rather than the general angle of reporting. Chan Pui-man said that D1 talked less often about what not to report. However, during that period of time if some big news had happened, that would definitely be touched upon. Chan Pui-man gave the examples of the 2019 anti-ELAB movement and the Covid-19 pandemic. Whenever they talked about how to improve the newspaper and whenever they talked about the contents of the newspaper, then inevitably they would touch upon those things. Chan Pui-man gave the further example of conducting interviews with demonstrators. D1 would not say, “Let’s have an interview with this particular demonstrator.”  But he would describe the general approach. For instance, he would say, “Let’s have more coverage on the thoughts of these people.” 

The evidence of Yeung Ching-kee

203.  Yeung Ching-kee said that he would only attend lunchbox meetings upon invitation. Before each of those meetings, upon the request of the Associate Publisher, everyone sent messages telling her what they would like to discuss with D1 at the meeting. After each lunchbox meeting, either the Publisher (Cheung Kim-hung) or the Associate Publisher (Chan Pui-man) would prepare a summary.  

The evidence of Royston Chow

204.  According to Royston, ever since he had become the COO of Next Digital Group, he attended every lunchbox meeting of various business units of Apple Daily. Apart from D1 and Cheung Kim-hung, Royston was the most senior person in those lunchbox meetings. Generally, D1 would be the host of those meeting. There was one exception, however, on 6 December 2019 when D1 was not available and Cheung Kim-hung stepped in as the host.  

205.  At the lunchbox meeting, after the attendees had finished lunch, there would be discussion. D1 would talk about his views, for example, his views about the anti-government demonstrations. Then, there would be discussions of the topics raised in the chat group and D1 would decide on those questions. If the topic was related to the newspaper, very often it would be connected to anti-government issues, “police violence” and gaining sympathy for protestors. Such discussions were held on and off starting from around September/October 2019 up to the beginning of December 2020. D1 would have some instructions as to what should be done, e.g. more people should pay attention to it or how to seek the attention of foreign countries. Examples included the setting up of the English version of Apple Daily[139], the “One Hongkonger, One Letter to Save Hong Kong” campaign[140], and the special feature “Freedom Summer” [141] which had a Chinese[142] and an English[143] version. By such means, foreign countries would pay attention to the anti-government situation or “police violence” in Hong Kong at the time. It was hoped that the support of foreign countries could be obtained, perhaps even the more drastic measure of “sanction”. After each meeting, Cheung Kim-hung would prepare a summary of the conclusions reached, which would then be circulated to all the attendees.

Slack records

206.  It is D1’s case that the aforesaid evidence of the prosecution witnesses that D1 gave editorial directions at lunchbox meetings is not borne out by the Slack records prepared by Cheung Kim-hung (and Chan Pui-man) after those meetings.

The evidence of Cheung Kim-hung

207.  Cheung Kim-hung’s evidence-in-chief was that the notes he prepared after lunchbox meetings were in point form. In cross-examination, he said that after each lunchbox meeting, D1 would instruct him to put down in Slack the main points (action points) discussed at the “lunchbox meeting”.

208.  Furthermore, Cheung Kim-hung said that if the editorial directions were merely about the general approach, then they would not necessarily be recorded. Moreover, only the main points but not the detail discussion would be recorded. Although Cheung Kim-hung agreed that the majority of the “lunchbox meetings” was not related to either the Digital Form or the Print Form of Apple Daily, he disagreed that “lunchbox meetings” were, in the main, business development meetings.

209.  It should be noted that even though Cheung Kim-hung agreed in cross-examination that the records pertaining to lunchbox meetings were kept in Slack, he had not been cross-examined on the Slack records[144]. There was, however, an application by D1 to recall Cheung Kim-hung for cross-examination on those records which the defence say were obtained by them and only came into their possession after Cheung Kim-hung had concluded his evidence. That application was made on 10 May 2024 (Day 74 of the trial), which was 52 days after Cheung Kim-hung had finished giving his evidence on 2 February 2024 (Day 22 of the trial). Having heard counsel, on 16 May 2024 we refused D1’s application. Reasons of the rulings were handed down on the same day and we are not going to repeat those.

210.  For the present purpose, it suffices for us to say that in assessing the evidence of Cheung Kim-hung regarding lunchbox meetings and Slack, however, we bear in mind the principles stated by the Court of Appeal in HKSAR v Chan Hing Kai[145]. In particular, in the present case we do not draw any adverse inference against the defendants on the basis that Cheung Kim-hung had not been cross-examined on the Slack records. In deciding whether or not to accept Cheung Kim-hung’s evidence in this regard and the weight to be attached, we have to look at all the relevant evidence as a whole: HKSAR v Leung Wai-kit[146].

The evidence of Chan Pui-man

211.  In cross-examination, Chan Pui-man said that as far as she could remember, apart from “港蘋報紙對話” (“Hong Kong Apple (Daily) Newspaper Conversation”)[147] and “香港蘋果紙主管” (“Hong Kong Apple (Daily) heads of newspaper”)[148], she did not participate in any other lunchbox meetings.

212.  As regards the group “Hong Kong Apple (Daily) Newspaper Conversation”, Chan Pui-man was asked about the notes pertaining to the lunchbox meetings held respectively on:

•  3 January 2019[149]

•  20 June 2019[150]

•  15 January 2020[151]

•  15 May 2020[152]

•  17 July 2020[153]

•  16 October 2020[154]

The first three summaries were prepared by Cheung Kim-hung and the last three were prepared by Chan Pui-man. Chan Pui-man could not remember whether there were lunchbox meetings for the same group between 3 January and 20 June 2019. However, Chan Pui-man said that it would not be the case where lunchbox meetings were held without any records in the relevant channel of Slack.

213.  As regards the lunchbox meeting held on 20 June 2019, Chan Pui-man said that the general angle of reporting would have been discussed. D1 as the boss would express his views in lunchbox meetings. Follow-up actions to be taken would be in respect of the conclusions D1 agreed upon. Conversely, if D1’s opinion was that “there’s no need to do this one, let’s not do it”, then there would not be any follow-up actions. Whilst there would be discussions, D1 was a person who had his own views and on occasions, relatively speaking, the attitude he adopted was pretty strong. Therefore, he would be the one who had the final say.

214.  In re-examination, Chan Pui-man’s attention was drawn to the summary of the lunchbox meeting on 16 October 2020[155] which she prepared and sent out through Slack. She confirmed that Cheung Kim-hung was not present at that meeting. Item 10 of the summary read,

“Headliner (Tsang Chi Ho, Wong Hei), commentary (such as Song Po, Lo Fung) and Lennon wall (advertisement) would be added to the live news broadcasting. Chan Pui Man is worried that it will damage the positioning of professional and serious news reporting. Mr Lai says it is very boring now, and has to be more lively”

Chan Pui-man explained that at that time D1 was proposing a TV news programme on the digital platform of Apple Daily. However, he did not want to do it in the traditional way. Rather, he would like to have a live news programme styled in way similar to RTHK’s “Headliner” (「頭條新聞」) and to have hosts to comment on the news. During discussion, Chan Pui-man’s opposite opinion was overruled by D1 who insisted on his proposal. That, Chan Pui-man said, was one example of D1 having a strong will.

215.  As regards the group “Hong Kong Apple (Daily) Newspaper Conversation”, Chan Pui-man was asked about the notes pertaining to the lunchbox meetings held respectively on:

•  15 February 2019[156]

•  19 September 2019[157]

Chan Pui-man was asked, having refreshed her memory from the summaries of conclusions shown in the Slack records, whether she would agree that the lunchbox meetings were mostly concerned with business or improving the newspaper. Chan Pui-man answered that those were included. However, there were also some other discussions including D1 wanting to find some writers for the forum page (“Apple Forum”) and asking that the Chinese news section to give bigger coverage during the pandemic to news about the covering up of the source of the virus.

The evidence of Yeung Ching-kee

216.  Yeung Ching-kee confirmed that during the period between 2019 and 2020, in Apple Daily there were lunchbox meetings which both D1 and he attended. Yeung Ching-kee remembered most vividly one such meeting in July 2020. Yeung Ching-kee was shown an email found in his mobile titled “July 17 (Friday), VIP lunchbox meeting (paper)”[158] which he had attended as a representative of Apple Forum. Before that lunchbox meeting, Yeung Ching-kee raised the matter about there being not enough writers for Apple Forum after the NSL[159]. At the subsequent lunchbox meeting, D1 gave the instruction to look for overseas writers[160].

217.  As regards the summary of the aforesaid lunchbox meeting which was prepared by Chan Pui-man[161], Yeung Ching-kee said the word 「討論」(“discuss”) used by her was not appropriate in that there was in fact no discussion at the meeting. According to Yeung Ching-kee, when various departments raised their problems and sought instruction, he would not intervene. Similarly, when he talked about the problems he faced, other colleagues would not comment. It was D1 who gave all the instructions. Yeung Ching-kee said that he definitely had to carry out those instructions. Besides, the Publisher and the Associate Publisher would also follow up on those instructions.

218.  In cross-examination, Yeung Ching-kee agreed that in his cautioned interview conducted on 24 June 2021, he told the police that according to his understanding, the lunchbox meetings were for everyone to sit down and talk, if there were any problems at work that needed D1 to step in to settle.

The evidence of Royston Chow

219.  In cross-examination, Royston was asked to refresh his memory of the lunchbox meetings pertaining to “Hong Kong Apple (Daily) print form advertisement” (「港蘋紙廣告」) from the relevant Slack records[162]. He was asked specifically about the meeting of that group held on 6 December 2019. Royston recalled that he attended that lunchbox meeting. According to the records, D1 was not available for that meeting[163].

220.  It was put to Royston as a general proposition that lunchbox meetings attended by him were in the main business development meetings and not for D1 giving editorial directions. Royston disagreed to both.

Chapter 9 – Apple Daily’s Charter and editorial independence

221.  One of the issues which arose during the trial was to what extent, if any, had D1’s political views and stance borne on Apple Daily’s angle of news reporting, editorial and selection of writers.

222.  It is the prosecution’s case that D1 gave editorial directions in Apple Daily which the senior management would implement. On the other hand, it is the defence case that D1 did not give such directions and that the editorial staff of Apple Daily enjoyed independence.

Apple Daily’s Charter

The evidence of Cheung Kim-hung

223.  In cross-examination, Cheung Kim-hung was asked about the charter for the editorial office of Apple Daily dated 7 March 2019 which was signed by Cheung Kim-hung on behalf of Apple Daily and Law Wai-kwong on behalf of the editorial staff.[164]  There were also similar documents signed with Lam Man-chung[165], Fung Wai-kong[166] and Yeung Ching-kee.[167] 

224.  Cheung Kim-hung agreed that it was provided in the aforesaid charter that the editors would have editorial independence. It was also so written in the Environmental, Social and Governance report contained in the annual report of the Next Digital Group[168]. However, he disagreed with leading counsel that the freedom of expression meant being able to say “no” to the boss.  

The evidence of Chan Pui-man

225.  Chan Pui-man agreed that Apple Daily had a charter for editorial independence[169] (“the Charter”) which was drafted by her at the request of Cheung Kim-hung[170]. She said she based her draft on some existing examples and templates from the Hong Kong Journalists Association and also from some foreign media outlets such as BBC.

226.  The Charter[171] provided, among other things, that:

“Article 5

Any news report shall adhere to the principles of truth, justice, objectivity and independence. This does not mean that all views and data are to be fully stated and listed out, instead it means not to be dominated by any political, commercial, religious or other interests so as to strive for presenting a comprehensive truth without bias or fear and give stakeholders who are accused or involved an opportunity to make full explanations”.

“Article 10

The editor-in-chief is the person in charge at the highest level of the collection and edition affairs of Apple Daily who shall be appointed by Part A, adhere to the professional concept and ethics of journalism, implement the collection and edition policy of the newspaper office, abide by this Charter and maintain the credibility of Apple Daily.

…

Article 13

Party A shall adhere to editing-management separation (policy), and news reports shall not be mixed with any contents from advertisers. If the format of any advertisement to be placed in our newspaper does not adopt traditional practice, the basic principle is to format it in such a way that any reasonable reader will be able to recognize that the content is not news.”

227.  Chan Pui-man agreed that the Charter stressed that there should be editorial independence and that was reflected in Article 13. More specifically, it was mentioned that there should be a separation of editorial and business. By “business”, she was referring to advertisement and so there should be a separation between news reports and advertisement.

228.  In re-examination, Chan Pui-man said that she was asked by Cheung Kim-hung to draft the Charter before the anti-ELAB movement. As to her understanding at that time of the purpose of the drafting of the Charter, she said that it was because the mother company was a listed company and at that time there were some corporate auditing exercises. Cheung Kim-hung told her that it was the corporate auditing people who suggested them to do that. When Chan Pui-man was asked whether Article 5 had anything to do with editorial independence, she said Article 5 would be broader (than Article 13) in that it also included political, commercial, religious or other interests. On the other hand, Article 13 only referred to business interests.

229.  Chan Pui-man said that she believed in what she had written in the Charter. However, she said that in actual operation, for instance, when D1 requested to engage a particular person to be a writer for the Editorial, the Editor-in-Chief (Law Wai-kwong) would not have the chance to object or refuse. As to whether Chan Pui-man would allow D1 to affect her journalistic judgment, she said that if D1 really insisted, then that would be affected.

The stance of Apple Daily

230.  It was put to both Cheung Kim-hung and Chan Pui-man in cross-examination that it was common for different newspapers or media agencies to have different angles of reporting and that there was nothing inherently wrong with a newspaper having a particular stance or particular angle. As to this, both Cheung Kim-hung and Chan Pui-man agreed.  

The evidence of Cheung Kim-hung

231.  Cheung Kim-hung agreed that those who were seeking for more critical news and opinion pieces about the government would be looking towards Apple Daily. Cheung Kim-hung said further that the stance of Apple Daily had been known to many people and they realised Apple Daily belonged to D1.

232.  However, Cheung Kim-hung disagreed with counsel that D1 did not give editorial directions. He said that generally speaking they would follow what D1 said unless what he said could not be carried out. As to whether Apple Daily and the Next Digital group strictly adhered to the principle of editorial independence, Cheung Kim-hung said that they had an idea of editorial independence. However, D1 had given them an editorial policy and they had to follow it without choice. Cheung Kim-hung agreed that he had never been asked to approve or review any articles or videos published in Apple Daily, whether in the Print Form or the Digital Form. However, Cheung Kim-hung monitored the news uploaded in the website and also those published in newspapers every day. He said D1 did the same.

233.  Cheung Kim-hung agreed that when D1 came back to the company in 2018, the latter took up the role of chairman and was active in the running of Apple Daily. He did not agree, however, that D1 did not participate in the management of Apple Daily between 2014 and 2018. According to Cheung Kim-hung, in 2018 D1 took a more active role not only in the business of Apple Daily, but also in its operation and editorial.

234.  Whilst Cheung Kim-hung agreed with leading counsel for D1 that the senior management of Apple Daily shared with D1 the same belief in freedom of expression and democracy, he disagreed that D1 had not laid down any editorial policy for Apple Daily, whether during lunchbox meetings or otherwise. Cheung Kim-hung gave the example of the Fugitive Offenders Ordinance. Cheung Kim-hung said that D1’s editorial policy was to boost the public’s enthusiasm in procession and demonstration and to pressurize the HKSAR Government to withdraw the proposed legislation. This, Cheung Kim-hung said, was not purely a matter of freedom, democracy or freedom of expressions but was about the approach of the newspapers. Cheung Kim-hung added that when D1 participated in a demonstration, they would ask his secretary and driver where he would alight, so that they could interview him there and took photographs. The matter would then be reported in Apple Daily. D1 would give them instructions to make an extensive coverage and to whip up enthusiasm of the people to take to the streets. He also repeatedly wrote up articles in his column “Sink or Swim, Smile”, encouraging people to come out and participate in demonstration for the sake of the next generation, and not to be stingy with those few hours. In view of all the above, but for the editorial policy set down by D1, the senior management of Apple Daily would not have done as they did.

The evidence of Chan Pui-man

235.  Chan Pui-man agreed that in 2019-2020 Apple Daily would have been considered more liberal, more critical of the government. On the other hand, Wen Wei Po and Ta Kung Pao were the very pro-government newspapers. However, for news reporting referred to in Article 5, the emphasis was that it had to be based on the truth of the matters. Therefore, there would be a difference between news reports and commentaries. For articles in Apple Forum, it would be obvious that the writer was expressing his own views and opinions. As such, she agreed that whatever the angle of reporting, for news reporting the newspaper should adhere to the principles of truth, justice, objectivity and independence. As to whether there was any mechanism to ensure editorial independence in Apple Daily, Chan Pui-man said that actually that would depend on the awareness of each and every colleague.

236.  It was put to Chan Pui-man that D1 did not micromanage the editorial side of Apple Daily. She answered that it depended on what matter it was about. For some matters, D1 actually did not pay attention. However, in the case of news to which he attached importance, such as the storming of the LegCo on 1 July, then he would give instructions as to what should be done. Chan Pui-man said, therefore, that so long as there was nothing from D1, then they could exercise their editorial independence.

237.  It was put to Chan Pui-man that D1 would not direct her to do something and would just make suggestions. She answered that it would depend on the situation. On some occasions, her feeling was that D1 was giving her instructions.  Chan Pui-man agreed, however, that D1 was always courteous in doing so, by using such words as “can we do this?”, “is this suitable?” and “see for yourself”.[172]  Chan Pui-man confirmed that the editorial and operation of Apple Daily Taiwan and Apple Daily Hong Kong were independent of each other.

238.  In relation to the proposed “general strike” (「大三罷」) in 2019, Chan Pui-man was asked about a related WhatsApp message which she sent to Lam Man-chung on 1 August 2019 where she said[173],

“I already gave a heads up to an executive of the publisher, that on Monday the front page will be left blank, and there will be a passage briefly explaining that we support the strike, but given our social position, (we) are unable to participate in it even if we want to, etc.

It was put to Chan Pui-man that the above was an example of her making editorial decisions on important matters in that the decision to have a blank front page was made entirely without consulting D1. As to this, Chan Pui-man said that she had told Cheung Kim-hung about it and the latter agreed to it. However, she was not clear whether Cheung Kim-hung had told D1 or not. In re-examination, Chan Pui-man further explained that at that time D1 asked Cheung Kim-hung to write something in Chinese calligraphy and therefore many people within Apple Daily were aware that D1 was supportive of the strike. Cheung Kim-hung performed the calligraphy on a yellow background in black ink. Some middle-level and frontline colleagues asked whether they could exercise the right to go on strike. The management (including herself) opined that since they were in the mass media, they should not join the strike and halt publishing. After much discussion, the decision of the management was that “We wanted to participate but we could not”.

239.  Chan Pui-man was asked by leading counsel on the choice of the headline 「速龍無差別毆市民」(“STC assaulted people indiscriminately) on the front page of Apple Daily on 1 September 2019[174], which was about an incident which took place at the Prince Edward MTR Station the night before. By reference to her WhatsApp records, Chan Pui-man agreed that it was Lam Man-chung who suggested the headline.[175]  She said that the headline was decided according to the contents of the news coverage and therefore the relevant reporters would be in the best position to decide on the headline. Thus, unless she had a big question mark, she would rely on her colleagues to make the decision.

Yeung Ching-kee: D1’s view as “guiding principle”/ “independence in a bird’s cage”

240.  In Yeung Ching-kee’s evidence-in-chief, he was referred to his WhatsApp exchange with Cheung Kim-hung on 3 August 2020[176] where the latter said:

「 清奇，政府通緝多名海外人士，說他們違反國安法，如果他們來稿，我們也不方便付稿費。內容當然也按原定方針把關」

(“Ching Kee, a number of individuals overseas are alleged of violation of the National Security Law and wanted by the government. If they submit articles for publication, it is inconvenient for us to make payment for the articles. The contents of course will be checked strictly according to the original guiding principle”)

241.  As to what Cheung Kim-hung meant by “the original guiding principle” （「原定方針把關」), Yeung Ching-kee said that in fact there was no specific written guideline in Apple Daily. However, during the 2019 anti-ELAB movement, it seemed to Yeung Ching-kee that D1’s articles, which were published on Sundays where large-scale processions and protests would took place, were calling on people to take to the street. Therefore, during that period when Yeung Ching-kee wrote articles or selected articles for Apple Forum, he would write or select articles which encouraged people to take to the streets and that was the main theme.

242.  Yeung Ching-kee said that after the implementation of the NSL, he noticed that D1 mentioned the NSL many times in his column “Sink or Swim, Smile”. From Yeung Ching-kee’s perspective as an editor, he considered that some of D1’s captions were very good and they left a very deep impression on him, examples of which included “Time is a weapon” (「時間就是武器」)[177] and “The great era is coming soon” （「大時代快將來臨」）[178]. D1’s articles reflected his views and stance very truthfully and genuinely and they also mentioned the issue of sanction. D1 considered that sanctions imposed by the United States and the Western countries on China and Hong Kong would not abate. This was because the change in the policy towards China by the US would not make a turnaround within a short period of time. The US sanction would have an impact on China’s economy for a long time. Yeung Ching-kee regarded D1’s views and stance as the guidelines for Yeung Ching-kee’s own writings and selection of articles.  

243.  In cross-examination, it was put to Yeung Ching-kee that he would not approve a particular article, if in his opinion it was calling for something unlawful. Yeung Ching-kee answered that he would not give his approval if it would obviously violate the law. However, if the articles were playing “edge ball” and were consistent with the stance of Apple Daily and would avoid breaching the law, then perhaps it would be adopted. In re-examination, Yeung Ching-kee agreed that he was operating in grey area and he hoped to avoid legal risks.

244.  Yeung Ching-kee said that he considered D1 as a boss who was both generous and cruel. When Apple Daily became a listed company and also when the Digital Form was separated from the Print Form, on both occasions D1 distributed shares to the employees, as a result of which some of the senior management of the company became millionaires. On the other hand, D1 made the most use of the staff members. If anyone was not to his liking, that one would be replaced very soon. During Yeung Ching-kee’s 23 years of service in Apple Daily, several editors-in-chief and publishers had been replaced. Concerning D1’s request for news coverage, he strived for something new and something novel. The most direct and simplest way to achieve that was to get another person to do the job. Therefore, if someone in the senior management or middle level wanted to stay in Apple Daily, it was essential to listen to D1’s instructions and take the initiative to get the works at hand done. Yeung Ching-kee wanted to stay in Apple Daily and therefore he obeyed D1’s instructions.

245.  Yeung Ching-kee added that, based on his 30 years’ experience as a media worker, after online news became popular and after the decline of the traditional mass media, “editorial independence” had almost become a myth. In order to attract particular target readers, the mass media had their own stances. He described the situation as “an independence in a bird’s cage”, in that D1 set the basic stance and direction of Apple Daily which was similar to a birdcage. Within that bird’s cage, the editorial staff had a certain degree of independence. However, they could not exceed the boundary. Therefore, one could not simply say whether “editorial independence” existed or not.

Chapter 10 – The Editorial (「蘋論」) and Apple Forum（「蘋果論壇」）

Introduction

246.  Both the Editorial and “Apple Forum” of Apple Daily were in Section A of the newspaper. Based on the evidence of the prosecution witnesses, whilst Yeung Ching-kee was in charge of the Editorial and Apple Forum, his superiors (including D1, Cheung Kim-hung and Chan Pui-man) would recommend writers for him to consider. Moreover, articles of writers recommended by D1 and Cheung Kim-hung would get published. Ultimately, D1 was the one who had the final say on the choice of writers.

The Editorial

247.  According to Yeung Ching-kee, the Editorial represented the stance of the newspaper. There would be one editorial per day. The Editorial in the Print Form would also be available in the Digital Form. After “English News” was introduced, the editorials would be translated and uploaded to “English News”. After the editorial of the day was typeset, sometimes Yeung Ching-kee would be given a copy before publication. However, he did not have the power to amend the articles of the others.

248.  At the material times, there were four writers for the Editorial:

•  “Li Ping” (Yeung Ching-kee);

•  “Lo Fung” (Fung Wai-kong);

•  “Fong Yuen” (Ngan Shau-kau); and

•  “Ku Lap” (Yeung Wai-hong).

249.  Another writer Lam Pun-lee also wrote for the Editorial in May 2020[179]. However, Yeung Ching-kee was later told by Cheung Kim-hung that Lam Pun-lee would stop writing editorials in August 2020 and that “Fong Yuen” would write one more editorial (i.e., two in total) per week.[180] “Fong Yuen” was nominated by D1 who admired his writings.

Choosing editorial writers

250.  Cheung Kim-hung said Apple Daily’s editorial writers would only be engaged with D1’s approval. D1 had commended the writings of “Fong Yuen” and “Ku Lap”, both of them were critical of the Chinese Communist Party. By reference to a chain of WhatsApp exchanges he had with D1 on 9 April 2020[181], Cheung Kim-hung said that D1 wanted to invite “Fong Yuen” (Ngan Shun-kau) to write for Apple Daily, as the latter was well-versed with the Communist Party and his criticisms against the Communist Party and the government were well-written. As regards the other editorial writers, “Lo Fung” (i.e., Fung Wai-kong) who wrote mainly about politics and finance, and “Li Ping” (Yeung Ching-kee) who wrote mainly about the politics and the Chinese Communist Party, the stance taken up by both of them was anti-CCP and supportive of democracy, human rights and freedom.

251.  According to Yeung Ching-kee, the writings of “Fong Yuen” reflected the views of D1.

Stance of editorial writers

252.  According to Yeung Ching-kee, it was up to the writer to choose and decide on the subject of the editorial. Yet, all of the editorial writers understood that they had to follow the basic stance of the newspaper, i.e., they had to pay attention to D1’s views and stance. Therefore, during the anti-ELAB movement in 2019, the stances and the views expressed by the editorial writers were basically similar in that they all supported the resistance movement and the withdrawal of the ELAB. This stance was consistent with the views expressed by D1 in his own column which was then calling for the citizens to take to the streets. Besides, the editorial writers’ views on sanction were also consistent with that of D1. That said, Yeung Ching-kee opined that it was also consistent with the social environment and the public opinion at that time.

Examples from the Editorial

(1)  “Action Against the ‘Evil Law on Extradition to China’ will be Everywhere” (反「送中惡法」行動將無處不在)[182], published on 13 May 2019

253.  In this editorial, “Lo Fung”, commenting on the departure of Lam Wing-kee and the ELAB, wrote:

“ Although being a bit fearful, Mr. LAM Wing-kee had chosen to remain in Hong Kong all along in the past and was brave enough to openly speak out against the regressive (practices) of Beijing and the SAR government over and over again. He believed that Hong Kong and the (“)One Country, Two Systems(”) could still play a protective role (by) at least giving him a chance of receiving a fair and just trial without being arbitrarily detained and convicted.

However, the “evil law on extradition to China” has broken the last protective net. Hong Kong people, including Mr. LAM Wing-kee, have lost (their) original legal protection. The mainland government no longer needs to mobilise powerful agencies or seven-seater car(s) to take away target person(s). (It) has the authority to request the SAR government to hand over such persons. At that time, the Chief Executive, Carrie LAM, and her Secretary for Justice, CHENG Yeuk-wah, will definitely entertain (every) request and will hand over ( the target person(s)) one by one upon order.  At that time, it is afraid that Mr. LAM Wing-kee will not be able to escape from the clutches. Mr. LAM was desperate. (He) had no choice but to leave our city and flee to the freedom of Taiwan.”

（「儘管有點提心吊膽，林榮基先生過去一直選擇留在香港，並勇於發聲，一再公開站出來反對北京及特區政府的倒行逆施。他相信，香港及一國兩制仍能發揮保護作用，至少讓他有公平公正的審訊的機會，不會被胡亂拘禁及入罪。

然而，「送中惡法」把最後的保護網打破，香港人包括林榮基先生失卻了原來的法律保障，內地政府不需再動用強力部門或七人車抓走目標人物，可以名正言順的向特區政府要求交人，而特首林鄭月娥及她的律政司司長鄭若驊到時肯定來者不拒，收一同order 移交一個，到時候林榮基先生只怕逃不出魔掌。林先生絕望了，不得不選擇離開我城，投奔到自由的台灣去了。」）

(2)  “Carrie Lam opposes the Council. The public oppose the black cops. Vowing to stand against each other” (「林鄭反議會 市民反黑警 誓不兩立」)[183], published on 12 May 2020.

254.  In this editorial, Yeung Ching-kee wrote:

“Today, the Chinese and the thieves are incompatible with each other. Hong Kong people will not kneel down and retreat. (We) vow to be in the same family with peaceful and valiant protesters, to have Hong Kong linked with the world and resist until the end.”

(「如今，漢賊不兩立，港人不會跪低、不會偏安，誓必和勇一家，香港國際聯線，抗爭到底。」)

255.  As to what Yeung Ching-kee meant by “the Chinese and the thieves”, he explained in Court that that was a term adopted from the traditional Chinese culture. Generally, it referred to two sides which were on opposite teams. One side was the government who proposed to amend the bill. The other side was the citizens who opposed this amendment of the bill. As to the phrase “in the same family with the peaceful and valiant protesters”, the “peaceful” was referring to the peaceful camp, while the “valiant” was referring to the valiant protesters. Yeung Ching-kee meant that they had to co-operate with each other. As to what he meant by “to have Hong Kong linked with the world and resist until the end”, he said that Hong Kong had to gain support from the international community to ask for the withdrawal of the fugitive bill amendment.

256.  Yeung Ching-kee said that his views in the aforesaid editorial reflected the stance of Apple Daily and were similar to the views expressed by D1 in his column. When the Court asked him whether by mid-May 2020 when the editorial was published, the fugitive amendment bill was still a live issue, he said that he thought it was still relevant, as all along they were talking about the “Five Demands” which were not limited to the withdrawal of the fugitive amendment bill. After reading the whole of the editorial and upon further clarification sought by the Court, Yeung Ching-kee agreed that the focus of the editorial was not so much on the fugitive amendment bill, but more about the police arrest action and the upcoming Legislative Council Election.

(3)  “CPC evilly spread virus to destroy Hong Kong, and bring the whole world into dilemma” (「播毒殺港 中共邪惡 世界埋單」)[184] , published on 26 May 2020

257.  Yeung Ching-kee said that by the time he wrote this, he knew about the proposed legislation and introduction of the NSL. The message he tried to convey in that editorial was that the coronavirus had caused lethal effects throughout the world and the NSL that was about to be enacted might destroy the freedom and democracy of Hong Kong, and the whole world had to pay the price for that.

258.  At the end of this editorial, Yeung Ching-kee wrote:

“Fearless Hongkongers already stood out to fight against tyranny. If the democratic world’s support remains at their mouth instead of imposing powerful political, economic and military sanctions over CPC, is it any different from letting the real common enemy of human being, sinner through ages, to continue to do harm to Hong Kong and the whole world?”

(無畏無懼的香港人已挺身而出，反抗強權，如果民主世界還止步於口頭聲援，不在政治、經濟、軍事上對中共採取強有力的制裁，何異於讓真正的人類公敵、千古罪人繼續禍港禍全球？)

Yeung Ching-kee said the above, which reflected his views on sanction, was also the views of Apple Daily and D1.

(4)  “Mandating Sanctions on the Villains responsible for Human Rights (Abuses) is the Way to Pull the Plug once and for all”(「制裁人權惡棍是釜底抽薪」)[185], published on dated 13 June 2020

259.  Commenting on a recent report titled “Strengthening America & Countering Global Threats” released by the Republican Study Committee (RSC) of the US Congress, Yeung Ching-kee openly called for the sanction of certain Mainland and Hong Kong officials:

“The sanctions on the PRC officials with their properties to be blocked had by far created an effect much more overpowering than measures of sanctioning the CCP institutes and suspending/ eliminating different and preferential treatment for Hong Kong. That’s indeed a strategy of pulling the plug once and for all. May the United States Congress and government make active use of the Global Magnitsky Human Rights Accountability Act to enlarge the scope of sanction covering more PRC and Hong Kong senior officials.

…

Besides, there should be no more delay for sanctions to be imposed on the villains responsible for the human rights (abuses) in Hong Kong and deterrence against the Hong Kong officials must not wait either. Even before the Hongkong-version National Security Law was implemented, the Secretary for Security, John Lee Ka-chiu, had already prepared the way for it by enacting laws to deprive Hong Kong people the right to demonstration, and the Secretary for Education, Kevin Yeung Yun-hung, gave orders to deprive students’ and teachers’ right to holding class boycott. Their abuse of human rights in Hong Kong is indeed a close match with that of the party’s villains in Xinjiang and Tibet and deserve to be put on the first sanction list of the United States same as those other villains like Chen Quanguo, Wu Yingjie, Xia Baolong and Luo Huining, all being the villains responsible for human rights (abuses).”

（「制裁中國官員、凍結他們的財產，由此產生的威懾力遠大於制裁中共的機構或取消香港的特殊地位，實屬釜底抽薪之策，但願美國國會、政府能發揮《全球馬格尼斯基人權問責法》的威力，盡快把制裁對象擴至更多中港高官。

…

而且，制裁香港的人權惡棍、震懾香港官員也刻不容緩。港版國安法未出台，保安局局長李家超竟已在部署執法要剝奪港人示威權，教育局局長楊潤雄已勒令剝奪全港師生的罷課權。他們對香港人權的侵犯，堪比新疆、西藏的黨棍，應該與陳全國、吳英傑、夏寶龍、駱惠寧一樣，成為受美國第一批制裁的人權惡棍。」）

(5)  “Who is Afraid of CCP Sanctions and Oppression?”（中共的打壓與制裁不足畏）[186], published on 14 July 2020

260.  In this editorial, Yeung Ching-kee wrote:

“The Chinese and Hong Kong Communists went to great lengths to suppress the Hong Kong Pan-democratic primary election for the upcoming LegCo election only to be met with a turnout of 610,000 voters. The significance was much greater than the Pan-democrats’ intent on creating the best candidate combos, for what it reflected was Hong Kong people standing upright with heads holding up high to the oppression of the implementation of the NSL and the onslaught of the Chinese national security, and whose courage and wit in the pursuit of democracy and freedom have not been crippled. As the prospects for 35+ in the September LegCo elections materialize, if the Chinese and Hong Kong Communists insist on their ways and disregard Hong Kong people’s demand for self-reliance and self-governance, the sanctions from the West are bound to follow. And the so-called retaliation from the CCP would only be met with international mockery.

…

However, in the face of these sanctions, whether it is lawmakers Rubio and Van Hollen or other members of any related institutions, it is hard to believe that they are in fear - it’s more of an honor for them. Just like Hong Kong people, the more severe the oppression, the stronger the courage and wit to resist. Likewise, the more savage the CCP gets with its suppression and sanctions, the more the international community is consolidating its united front against tyranny. In the end, why not let the CCP play its favorite game of shooting himself in the foot.”

(「中共港共扭盡六扭盡六壬打壓香港民主派立法會初選，結果有61萬人投票，其意義遠遠超過民主派有望產生最佳參選組合，反映的更是港人在國安法實施和中國國安進駐香港的壓迫下，挺直了脊樑，追求民主、自由的勇氣和智慧沒有受損，9月立法會選舉35+的前景越見清晰，中共港共如果一意孤行，罔顧港人自救、自治訴求，勢必引致西方國家的制裁，而中共所謂對等報復只會貽笑國際。

…

然而，面對這樣的制裁，無論是魯比奧、范赫倫等議員，還是相關機構，相信不以為懼、反以為榮，就像港人一樣，越受壓迫越有勇氣與智慧去反抗。由此可見，中共的打壓與制裁越野蠻，越能促成國際反抗暴政的統一戰線，到頭來讓中共玩一把它最喜歡的搬石頭砸自己的腳。」)

261.  Yeung Ching-kee said the idea of the editorial was that the anti-sanction measures the CCP adopted would have no effect. It would not scare people or countries that were trying to impose sanction. Yeung Ching-kee said these also reflected the views of Apple Daily and that similar views had also been expressed by D1 in his column.

(6)  “The Goal of the Government; is it Zero Wuhan Pneumonia or Zero Liberty” (政府目標是武肺清零還是自由清零？)[187], published on 15 January 2021

262.  In this editorial, Yeung Ching-kee wrote:

“… it can be seen that seeking zero Wuhan Pneumonia by enhancing monitoring the people is complete nonsense. Carrie LAM and LAM CHENG government, which have achieved zero popularity a long time ago and reached negative net value, are indeed harboring treacherous intents.

… Even if the vaccine is 99% effective, zero cases still could not be guaranteed. Yet LAM CHENG government is still having the zero case dream. Perhaps the real motives are hidden behind the overt moves. Introducing a mode to monitor citizens and forcibly implementing a mobile APP to monitor citizens would not achieve the goal of zero Wuhan Pneumonia cases, but would only achieve the goal of zero room for citizens’ freedom.”

（「…以強化對市民的監控、管制以求武肺清零根本是無稽之談。民望早已清零、凈值負數的林鄭月娥和林鄭政府，實在居心叵測。

… 就算疫苗九成九有效，也不能保證個案清零，林鄭政府竟然還在發清零夢，恐怕是項莊舞劍、意在沛公。引進監控市民的模式，強推監控市民的手機程式，不會達到武肺個案清零的目標，只會達到把市民的自由空間清零的目標。」）               

Yeung Ching-kee said that he was mainly querying whether the monitoring measures adopted by the government were aiming at controlling the epidemic or were trying to limit the freedom of our people.

Apple Forum

263.  On Saturdays, Apple Forum would be in the form of a special issue called 「一周熱話」 (“Hot Topic of the Week”)[188] which comprised commentaries written by various writers corresponding to the topic of the week. On other days, Apple Forum comprised various commentaries by different writers without a specific theme.

264.  Articles of Apple Forum in the Print Form (whether on Saturdays or other days) might not necessarily be published in the Digital Form, even though they usually did. That was up to the decision of Law Wai-kwong, the editor-in-chief of Apple Daily. On the other hand, the Digital Form may include articles other than those published in the Print Form. As to how articles in Apple Forum (which were in Chinese) would be selected for translation and inclusion in “English News”, Yeung Ching-kee said that it was the responsibility of Fung Wai-kong (who was in charge of English News), although Yeung Ching-kee would speak to the latter or his subordinates. There were occasions when an author requested his article not be translated, and in which case Yeung Ching-kee would relay the view of the author to Fung Wai-king[189].

Choosing writers for Apple Forum

265.  Yeung Ching-kee said that the criteria for choosing writers of Apple Forum were relatively open. Basically, there were the following:

•  support political democracy;

•  support economic marketization; and

•  not to support Hong Kong independence.

The aforesaid criteria were already there before around April or May 2015 when Yeung Ching-kee took over the charge of Apple Forum and he simply followed them.

266.  Later, D1 said that Apple Forum needed to change and therefore the writers also had to be changed regularly. In around the beginning of 2016, Yeung Ching-kee was asked by D1 to come to his office to discuss the list of writers for Apple Forum. Chan Pui-man was also present on that occasion. To Yeung Ching-kee’s surprise the list of writers suggested by D1 included some leaders of the pro-establishment camp and members of the Executive Council. In 2016 and 2017, there were leaders of the pro-establishment camp who would contribute articles to Apple Daily. In cross-examination, Yeung Ching-kee was referred to a WhatsApp exchange which he had with Chan Pui-man on 17 April 2018 concerning the list of writers for Apple Forum.[190] Yeung Ching-kee said that that was one of the occasions where the list of writers was discussed and that the list was updated regularly. Yeung Ching-kee also agreed that around April 2018 there were suggestions that Jasper Tsang, Joseph Yam and John Tsang be invited to write for Apple Daily. However, in 2019 no pro-establishment Legco members would write any articles for Apple Daily.

267.  According to Yeung Ching-kee, even though D1 did not give instructions to writers of Apple Forum directly, those writers would not take a stance which was opposite to that expressed in D1’s own column, “Sink or Swim, Smile” (「成敗樂一笑」)[191] published in the Supplement (「名采」) in Section E of Apple Daily. Yeung Ching-kee said that although D1’s column was not in Apple Forum, he as the person in charge of Apple Forum definitely needed to read D1’s column.  

268.  There was only one occasion where D1’s article was published in Apple Forum. That was “People in modern times are not animals existing outside the western civilization mechanisms” (「現代人不是西方文明機制外生存的動物」)[192] which was published on 1 February 2020. The reason for that was that the article was too long to fit in D1’s column in the Supplement and therefore D1 asked that it be put on the forum page[193]. Yeung Ching-kee complied as told. In order to do that, Yeung Ching-kee had to move some articles to other days. In the aforesaid article, among other things, D1 wrote:

「北京想利用他們的法律，剝奪我們香港人的自由，要以牧羊式帶領我們。跟隨習帝每一句話。定於一尊，萬事便好辦了，便可以有效治香港了。我們只是應聲蟲，香港哪還有自由，哪還有法治？哪還有法治賦予的誠信？」

（“Beijing is trying to take away freedom from Hongkongers with their law, leading us like a herd of sheep and making us following every word of Emperor XI. They believe that worshiping only one person and everything will become easy, and Hong Kong can be ruled effectively. Then we are just yes-man and Hong Kong will lose its freedom. If so, where do we find the rule of law? Where can we find the credibility granted by the rule of law?”）

「今日世界只有一套行之有效的價值觀和社會機制體系，都是西方文明結晶。中國要摒棄西方文明侵略的同時，卻仍置身期間，靠這些機制運作來過活，這是多矛盾的困擾…」

(“In today’s world, there is only one set of effective value and social mechanism and system, which is the fruit of western civilization. While China is abandoning the invasion of western civilization, it is still involved in western civilization and relies on western mechanisms for survival. What a contradictory disturbance! …”)

「現時世界市場和社會運作靠的都是西方文明機制。這些機制是西方文明結晶，無人可取代或代替,either you’re a friend, or an enemy。敵友分明，你不能做兩頭蛇。」

(“Currently, global market and social operation are relying on the mechanisms of western civilization. These mechanisms are the fruit of western civilization; no one can replace or substitute them. Either you’re a friend, or an enemy. There is a clear distinction between friends and enemies. You can't be both, breaching the peace of the system and at the same time making profits out of it.”)

Articles/writers recommended to Yeung Ching-kee

269.  As aforesaid, it was Yeung Ching-kee’s evidence that he would publish articles which D1 or the senior management provided to him. The following serves as examples:

•  On 21 January 2020, Lam Man-chung sent to Yeung Ching-kee an article said to have been submitted by Lew Mon-hung titled: “One Country, Two Systems: Taiwan is watching what Hong Kong is doing” (「一國兩制：香港在做 台灣在看」).[194] That article was published in Apple Forum on 23 January 2020.[195]

•  On 23 April 2020, Lam Man-chung sent to Yeung Ching-kee another article said to have been written by “Muk Man” (「牧民」[196]) who was said to be a friend of Martin Lee.[197] The titled of the article was: “I’ll bite whoever the Chairman tells me to bite” (「主席叫我咬誰就咬誰」). That article was published in Apple Forum on the following day.[198]

Yeung Ching-kee said he would regard these recommendations as instructions of his senior so that the articles had to be published, unless he found the articles problematic. In the latter case, he would explain to the senior management and the articles would not be published. On the other hand, Yeung Ching-kee said that articles provided to him by senior management would conform to the aforesaid three criteria for Apple Forum, as the senior management were very clear of D1’s viewpoint.

270.  There were also the writings of Takahashi whose pen-name was “Daizo Amakssu” (「甘粕代三」). At the request of Cheung Kim-hung, Yeung Ching-kee arranged for Takahashi to write in Apple Forum on Wednesdays. By way of background, Yeung Ching-kee said that at one lunchbox meeting D1 instructed him to look for overseas writers. Yeung Ching-kee gathered that Cheung Kim-hung was of the view that he was not making good progress on this and therefore Cheung Kim-hung invited this Japanese writer directly. Cheung Kim-hung placed great emphasis on United States’ return to Asia. According to this policy, the status of Japan would be very important. Therefore, Cheung Kim-hung and Yeung Ching-kee agreed that more articles should be written on Japan and Sino-Japanese relationship.[199]

271.  In cross-examination, Yeung Ching-kee was asked about his WhatsApp exchanges with Takahashi, where he told the latter that he would not interfere with the choice of topics and perspectives of writers:

•  Between 5 December 2020 and 7 December 2020 where Takahashi told Yeung Ching-kee that he would be writing about Wang Yi’s speech[200]; and

•  On 10 December 2020 where Yeung Ching-kee sent Takahashi a news reporting about Japan freezing Carrie Lam’s accounts in compliance with US sanctions and asked Takahashi to see if there was anything to follow up. Takahashi, however, replied that the Japanese sanction was just a show put up by a congressman. Yeung Ching-kee was afraid that Takahashi’s perspectives would be not agreeable to the majority of readers of Apple Daily. Therefore, he told Takahashi that, “The sanction is … the support shown to the Hong Kong people by the US.” [201]

Leading counsel then put to Yeung Ching-kee that the principle of not interfering with the writers applied to all writers who were under his control. To this, Yeung Ching-kee disagreed. He said that he was in fact interfering with the choice of topic by Takahashi, as he was warning the latter that if his articles did not comply with the stance and perspective of Apple Daily, then Yeung Ching-kee might change the writer. Yeung Ching-kee added that political stance mattered. If Yeung Ching-kee insisted on using writers whose articles did not comply with the Apple Daily perspectives, then he might be the one who got fired, as there had been precedents.

272.  Besides, leading counsel referred Yeung Ching-kee to the following incidents where he refused to accept the recommendation of his superiors and Yeung Ching-kee’s answers were as follows:

•  On 15 June 2019, a letter was passed to Yeung Ching-kee by Law Wai-kwong who said that it came from Figo Chan of the League of Social Democrats and written by Wong Ho-ming (「黃浩銘」) in prison. Yeung Ching-kee refused to publish the letter on the basis that it was too late for the Print Form and that there was no forum page on Sunday. Yeung Ching-kee suggested that the letter be published in the Digital Form instead[202];

•  On 3 September 2019, Yeung Ching-kee was asked by Chan Pui-man[203] to take a look at an article written by Shan Weijian (「單偉健」). She said that D1 wanted him to refute the article in the name of “Li Ping”. Subsequently, D1 also texted Yeung Ching-kee and asked Yeung Ching-kee to give him a call after reading the article[204]. Yeung Ching-kee replied to D1 and said that the article was “long and stinky, playing the game of deceiving oneself as well as the others only” and that the forum page did not intend to use it.[205]  In re-examination, Yeung Ching-kee explained the background of the incident as follows. He said he understood that Shan Weijian was a friend of D1. However, D1 was of the view that Shan’s article was not good. After discussing with Chan Pui-man and D1, a decision was made that the article would not be used. As such, D1 needed to give an explanation to Shan Weijian as to why his article was not published and he wanted Yeung Ching-kee to write him some comments about the article in WhatsApp, so that he would then forward Yeung Ching-kee’s comments to Shan Weijian.

273.  Then, it was put to Yeung Ching-kee that not all the articles published in Apple Forum was in support of sanction. One example given was the article of Wang Kun-yih[206] published on 20 June 2020: “Hong Kong and Taiwan’s ‘joint efforts to fight against China’ is probably all a dream” (「港台「聯手抗中」恐是南柯一夢」)[207]. As to this, Yeung Ching-kee said that he as an editor was in a very awkward position. As he had invited Wang to write an article, it was difficult for him not to keep his words and not to publish his article. At that time there were no other articles available for the forum page. If he did not use that article, the forum page would be blank. Yeung Ching-kee also said that after the article was published, he was scolded by readers. Some readers even wrote to D1 who forwarded the complaint letters to him. Upon enquiry by the Court, Yeung Ching-kee said that D1 asked his secretary to forward the readers’ letters to Yeung Ching-kee with a Post-it note asking Yeung Ching-kee to forward the letters to Wang. However, since D1 did not directly criticize Wang, that was one of the reasons why Yeung Ching-kee continued to approach Wang for articles.

274.  Finally, it was put to Yeung Ching-kee that the criticism which Apple Forum levelled at the HKSAR Government or the Mainland Government was to point out the deficiencies in policy, hoping that they would be corrected or would not occur in the future and therefore it was not criticism purely for sake of criticism. Yeung Ching-kee agreed.

Columnists of Apple Forum

275.  In about 2018, the columnists (i.e., regular contributors) of Apple Forum included:

•  Benny Tai

•  Martin Lee

•  Lee Yee

•  Simon Lee

•  Lo Fung

•  Ku Lap

•  Lau Sai-leung

•  Koo Tak-ming

•  Chin Chi-kin

•  On Yue

•  Poon Siu-to

276.  Yeung Ching-kee observed that the turning point of D1 taking a more radical stance was after 2018. That was reflected by the writers and articles commended by D1, among those were:

•  “Yi Jian Piao Chen”（「一劍飄塵」）

•  Au Ka-lun

Benny Tai

277.  Benny Tai had been a columnist of Apple Forum before 1998. In 2019, his angle was mainly supportive of resistance. Subsequently, Benny Tai initiated the primaries and therefore many of his articles were about the primaries. On 10 January 2021, however, Yeung Ching-kee was told by Lam Man-chung that Benny Tai had informed Lam that he would not be submitting articles to Apple Forum for the time being.[208]

278.  Yeung Ching-kee was shown the following as examples of Benny Tai’s publication in Apple Forum:

•  “Could you and I be fugitives?” (「你我都可能是逃犯？」)[209], published on 8 April 2019; and

•  “‘Primaries’ is resistance” (「初選就是抗爭」)[210], published on 21 July 2020.

Lee Yee       

279.  Cheung Kim-hung said Lee Yee (「李怡」) was one of D1’s favourites and he had contributed articles to Apple Daily for many years. His articles aligned with the general approach of D1. Cheung Kim-hung could not remember exactly since when Lee Yee started to write editorials for Apple Daily. He believed it was several years after 2000 and continued up to around 2014 or 2015. At that time, Lee Yee was also in charge of Apple Forum and he took up a column in that section called “Words in Life” (「世道人生」) which was published five times a week on weekdays. He wrote political articles on the CCP, anti-authoritarianism movement and mutual destruction.

280.  Similarly, Yeung Ching-kee said that Lee Yee was an experienced commentator whom D1 appreciated very much. Yeung Ching-kee added that “Words in Life” (「世道人生」) was the only column in Apple Forum which bore a name. Yeung Ching-kee described Lee Yee’s political stance as relatively radical and his articles, both before and after the enactment of the NSL, was supportive of the imposition of sanctions and he wrote in a way which Yeung Ching-kee described as “playing edge ball”.

281.  Examples of Lee Yee’s writings included:

(1)  “The Best Moment to ‘Laam Caau’ ” (「攬炒的最佳時機」), published on 24 June 2020[211], where he wrote: 

“ Ever since the anti-extradition movement, there have been so many youngsters, journalists and civilians who sweat it out with blood shed on the street, with numerous dead body found cases concluded as “unsuspicious”, so many occasions of blatant brutal beatings by the evil Hong Kong Popo[212], tortures, sexual assaults, violence and rape in darkness, you name it, so many. Such a battle of resistance by the Hong Kong people to kick the pricks is exactly an all-in Laam Caau of risking life and limb, carrying a spirit of “Thou and I perish together”, which arouse a worldwide awareness. An appeal to the world is a sanction against China and Hong Kong.

…

… At this critical moment of life and death, Hong Kong happened to receive widespread support from nearly all western countries opposing the Hongkong-version  National Security Law, not to mention that the United States made clear its (intention) to stage measures of sanctions in view of the election due to be held in Hong Kong in September. With all these it will definitely be the best moment to Laam Caau to yield the greatest chance of success and harvest. No way shall one miss the boat, shall he not? … ”

( 「反送中以來，多少年輕人、記者、市民在街頭流血流汗，多少被指『無可疑』的屍體發現，多少黑警公開暴打多少暗室酷刑、性侵、強暴，香港人螳臂擋車的抗爭，就是以死相搏攬炒，用『予及汝皆亡』的意志，喚起全球關注。向國際的訴求就是對中國、對香港的制裁。

…

…香港面臨生死存亡，又逢幾乎所有西方國家齊聲反對港版國安法，美國更明言視香港9月選舉而出台制裁措施，這真是攬炒最有成功機會的收成時機，豈可輕輕放過？」)

(2)  “Nightwalker whistles in the dark” (「夜行人吹口哨」), published on 10 August 2020[213]. In the Digital Form, there was a photograph of the former Chief Executive Mr CY Leung. To its left, it was quoted:

“Lee Yee: The DQ-Officer, the evil Hong Kong Popo, the 18 members of the HKU Council, and also the “honourable” men who claimed themselves as being “patriotic’ yet not “patriotic’ enough to get on the 1^st list, I’m afraid, were unable to fall asleep or at least felt restless. The reason is: Only the fools will fail to get a clear picture of the real soft and hard power and the global trend.”

(「李怡：DQ主任，作惡黑警，港大校委會18名成員，還有自稱或不夠『愛國』而沒有排上第一份名單享不到『榮譽』的人。他們恐怕也睡不着，至少忐忑不安。因為，只有儍瓜才看不到真正的軟硬實力和世界潮流與趨勢。」)

282.  Yeung Ching-kee was involved in the design of this format in the Digital Form. He said that this article was an example of Lee Yee supporting sanctions by “playing edge ball”. At the end of the article, it said：

“The humiliation from being cut off the affiliation with the US corporations, all sorts of inconvenience to be taken into account forthwith, the expansion of US sanction over most of other civilized states, a fatal blow on the governance over the subordinates and the entire team of the state .... Countless. Not coming soon, but now. When giving responses, the sanctioned and the officials, like a nightwalker, were simply whistling in the dark.”

(「被切斷與美國公司連接所帶來的羞辱，即時要考慮到的種種不便，制裁從美國向大部份文明國家的擴散，對下屬與整個統治團隊的管治意志的毀滅性影響……，太多太多。而且不是日後才出現,而是現在就來了。被制裁者及高官的回應，夜行人吹口哨吧了。」）

Martin Lee

283.  Martin Lee used to have a column in the Next Magazine. After the Print Form of the Next Magazine ceased to be published, Chan Pui-man informed Yeung Ching-kee that the column of Martin Lee and three others would be moved to Apple Forum. Martin Lee’s articles appeared in Apple Forum on Wednesdays until Apple Daily ceased to operate in June 2021.

284.  Yeung Ching-kee was shown an article of Martin Lee published in Apple Forum on 20 May 2020, titled: “Everyone is responsible for the rise and fall of the rule of law” (「法治興亡 匹夫有責」).[214]

Wu Chi-wai

285.  Yeung Ching-kee was shown one article in Apple Forum written by Wu Chi-wai on 28 May 2020[215] titled: “China (and) Hong Kong back on the path of Cultural Revolution and Cold War” (「中港走回文革與冷戰之路」).[216] At the time, Wu Chi-wai was the chairman of the Democratic Party and he was not a regular contributor to Apple Forum. In that article, Wu wrote:

“Over the last year, Hongkongers went all out to participate in the Anti-Extradition Law Amendment Bill (Anti-ELAB) Movement in blood, sweat and tears. The goal is to defend One Country, Two Systems, safeguard the core values established by generations of Hongkongers (and safeguard) the status (of Hong Kong) as an international financial centre. However, (while) Hongkongers oppose extradition to China, the CPC “directly delivers to Hong Kong (the Mainland system)”, implanting the Mainland system in Hong Kong, turning Hong Kong into the Mainland. Not only does the CPC deliver the National Security Law to Hong Kong, but (it) also delivers the National Security Department (one wrong character) to Hong Kong. (They) expressly announced (that they would) establish relevant authorities of safeguarding national security in Hong Kong, which is equivalent to setting up the Eastern Depot of Ming Dynasty (and) Gestapo of Nazi Germany in Hong Kong. (The purpose is to) arrest Hongkongers for the dictatorial military regime.

In fact, undoubtedly this move (by) the CPC is to forcefully remove the protective umbrella of the Two Systems, destroy One Country, Two Systems with (their) own hands (and it is) likely to tum Hong Kong into (another) Xinjiang (and to turn) Stanley(Prison) into Qincheng(Prison). In the past, Hongkongers often said “Today’s Xinjiang (is) tomorrow’s Hong Kong” but now it is already “Today’s Xinjiang (is) today’s Hong Kong”.

The CPC said that Hongkongers are colluding with foreign forces to turn Hong Kong into an independent or semi-independent political entity (and) then to split up and subvert the country. It is one of the CPC’s lies. These accusations are trumped-up charges. The CPC chains up Hong Kong and attacks Hongkongers like a straw man through national(ism), in order to divert the international concern and pressure (that arise due to) its misjudgment and failure in the pandemic control.

…

We may feel discouraged for one night, but we can’t stay disheartened forever. The CPC treats democracy activists as foes (and) freedom of speech as enemy. Now Hong Kong already has no more room to retreat. We must safeguard Hong Kong even more (and) utilize all fronts to fight against tyranny. Hongkongers (need to) fight, but more importantly, (we) need to fight to the end!”

(「過去一年，香港人帶着血汗與淚水全力反送中，目標就是捍衛一國兩制，維護經多代香港人建構的核心價值，以及國際金融中心之地位。然而，香港人反送中，中共卻「直送港」，將內地制度搬到香港，把香港變內地。中共不單把國安法直送香港，更加將國安局直送香港，直指要在香港設立「維護國家安全的有關機構」，等同要在香港設立明朝的東廠，納粹的蓋世太保，為獨裁軍政權抓捕香港人。

事實上，中共此舉無疑是強行拆除兩制的保護傘，親手拆毀了一國兩制，勢令香港變新疆，赤柱變秦城。以往香港人常言『今日新疆，明日香港』。

中共聲言，香港人勾結外國勢力，要將香港變成獨立或半獨立政治實體，進而達到分裂顛覆國家，此乃中共謊言之一。這些指控是羅織罪名，透過打民族牌，為香港架上死鎖，把香港人打成稻草人，以轉移中共錯判形勢、防疫不力而被各國打壓的視線與壓力。

…

我們可以灰心一晚，但不可以永遠喪志，中共視爭取民主的人士為仇讎，視言論自由為敵人，香港已經退無死所，我們更須守護香港，全方位用盡所有戰線對抗暴政。香港人，反抗，更要反抗到底!」)

“Yi Jian Piao Chen”

286.  Yeung Ching-kee came across the writings of “Yi Jian Piao Chen” on Twitter and he then invited the latter to write for Apple Daily. On 24 June 2020, D1 expressed to Yeung Ching-kee his appreciation of an article of “Yi Jian Piao Chen” titled “Don’t Mix up BLM with Anti-Extradition”.[217] Thereafter, Yeung Ching-kee would from time to time invite him to write commentaries. However, Yeung Ching-kee did not give “Yi Jian Piao Chen” a fixed column, as it was believed that he was in the United States and therefore he might not be able to follow the instant news of Hong Kong.

287.  On 4 July 2020, the topic of “Hot Topic of the Week” was “Hong Kong on the international chessboard” (國際棋盤上的香港)[218]. The forum on that day comprised the following three articles:

•  “How tough are the secondary financial sanctions by U.S.?”, written by He Jiangbing, a freelance writer who described himself as a Chinese financial scholar;

•  “How can we live and work in peace under the gun barrel?”, written by “Yi Jian Piao Chen”; and

•  “Transnational anti-China siege network”, written by Kay Lam, a freelance writer who described himself as current affairs commentator.

288.  The aforesaid articles were also available in the Digital Form. Yeung Ching-kee said that as a whole, the aforesaid three articles were supportive of sanctions. He explained that between 2019 and 2021, most of the readers of Apple Daily were supportive of the anti-ELAB movement. Before and after the enactment of relevant legislations by the United States for sanctioning Chinese and Hong Kong officials, the readers tend to like reading articles that were supportive of sanctions. There were identical opinions in the articles of D1’s own column. Therefore, Yeung Ching-kee would use D1’s viewpoints as guidelines when he wrote and when he selected articles for Apple Forum.

289.  Yeung Ching-kee said further that he received no instruction from either D1 or the senior management that the newspaper had to change its stance after the enactment of the NSL. The original stance was supportive of sanctions, and that applied to the editorial as well as the articles that Yeung Ching-kee wrote for the forum page. Yet, after the enactment of the NSL, if anyone openly appealed for sanction that person would be in breach of the NSL. Therefore, in the attempt to maintain the original stance there must be some changes which Yeung Ching-kee described as “playing edge ball”. That is to say, in the articles that Yeung Ching-kee wrote or chose for Apple Forum, there would be no further open calling for sanction. Yet through the commentaries on the issue of sanctions, analysis of the means and effects of the subsequent sanctions, the original stance was expressed, namely supportive of sanctions. In effect, Yeung Ching-kee was trying to skirt the rules by playing in the grey area. In cross-examination, Yeung Ching-kee agreed that after the NSL, playing “edge ball” was his description of a way to avoid breaching the law while at the same time staying true to Apple Daily’s principles in commentary. Yeung Ching-kee agreed that he would not intentionally breach the law.

290.  On 14 July 2020, President Trump of the US signed the “Hong Kong Autonomy Act”. On 18 July 2020, the topic for “Hot Topic of the Week” was “China-US conflict escalates”. One of the articles was written by “Yi Jian Piao Chen” with the title: “Will US Sanction Carrie Lam?” (「美國會制裁林鄭月娥嗎?」)[219] where it was written:

“ US President Trump signed the Hong Kong Autonomy Act and an Executive Order to scrap the economic privileges for Hong Kong and ban export of sensitive technologies to the city, as well as removing privileges for SAR passport holders. Anyone concerned about Hong Kong is worried about its future.

Yet now, in view of the sanctions recently imposed by the Trump’s administration in accordance with the Uyghur Human Rights Policy Act passed by the US Congress on four Chinese officials including Chen Quanguo, member of the Politburo Standing Committee of the Communist Party of China, for their trampling on the human rights of Uyghurs, the ones who are in a blue funk most should be HKSAR officials. This is the first time the U.S. government has sanctioned Chinese officials as high-ranking as those in the Politburo Standing Committee of the Communist Party of China, which makes it very clear that evildoers who abuse human rights are to be sanctioned irrespective of their status.

Though the Xinjiang issue is not as attention-grapping world-wide as the Hong Kong problem, is it possible for Carrie Lam and her cabinet, ranked much lower than Chen Quanguo to dodge US’s sanctions? I don’t think so, unless they make a major overhaul. But Hong Kong's bureaucrats have lost their original protective cover and equally become fish and meat on the chopping block of the Chinese Communist Party (CCP) Regime after the CCP has revoked Hong Kong’s “one country two systems” and has battered down Hong Kong’s judiciary independence by passing the Hong Kong version of National Security Law. I am rather interested in knowing whether these villainous officials, who welcomed the National Security Law earlier on, are conscious of the precarious situation they are in. Lin Liguo, the son of Lin Biao, the late quisling leader of the CCP, once described the CCP system with only one word: mincer. Hong Kong officials and police are enthusiastically welcomed to the mincer.”

(「美國總統特朗普簽署《香港自治法案》，同時簽署行政令，終止香港的優惠經濟待遇，不再允許從美國出口敏感技術到香港，還包括撤銷香港護照持有人的特殊待遇。每個關心香港的人，都會擔心香港的未來。

但現在最提心吊膽的應該是香港政府官員。因為就在前段時間，特朗普政府根據國會通過的《維吾爾人權法案》制裁了四名踐踏新疆人權的中國官員，包括中共中央政治局委員陳全國。這是美國政府第一次，制裁到中共政治局委員這麼高層級官員，表明了美國維護人權的立場：不管邪惡者地位多高，侵犯人權都要遭到制裁。

新疆問題目前沒有香港這麼舉世矚目，比陳全國官位更低的林鄭月娥等香港官員，能逃過美國的制裁嗎？我看很難。除非這些香港官員現在改弦更張。但中共通過港版國安法廢除了香港的一國兩制，摧毀了香港司法的獨立性，香港官僚階層也失去了原有的保發傘，同樣成為中共政權砧板上的魚肉。不知道這些當初歡迎國安法的惡吏，意識到自己的危險處境沒有？中共前叛國領抽林彪的兒子林立果有一個單詞描述中共體制：絞肉機。熱烈歡迎香港官員和警察，走進這部絞肉機。…」)

Yeung Ching-kee said that this was another example of “playing edge ball” in that it only provided an analysis of the legislation.

Au Ka-lun

291.  On 4 July 2020, D1 sent Yeung Ching-kee an image of an article “Destruction Means Thorough Implementation, Mutual Destruction Means Prosperity” (「摧毀即貫徹　攬炒即繁榮」)[220] written by Au Ka-lun in his column: “Nameless Wilderness” (「無名字荒野」) in the Supplement. D1 commented,

“Au Ka-Lun’s article is good, please consider to invite him to write commentary. Thanks”[221].

292.  As the Supplement was not under Yeung Ching-kee’s purview, he believed that D1 was asking him to invite Au Ka-lun to write for Apple Forum as: (1) his writing was very fluent; and (2) his attitude towards NSL was a critical one. Therefore, Yeung Ching-kee contacted Au Ka-lun right away and followed it up by an offer letter dated 7 July 2020.[222]

293.  On 17 August 2020, Yeung Ching-kee forwarded to Fung Wai-kong a text message from Au Ka-lun giving his consent that his articles in Apple Forum be translated into English[223]. On 26 December 2020, Au Ka-lun’s article “New Words for Hong Kong in 2020” (「2020 香港新詞」) in “Nameless Wilderness”[224] was translated into English and published in “English News” on the following day[225].

294.  Yeung Ching-kee’s identified two articles of Au Ka-lun in Apple Forum:

•  “Give an awful show in robes and wigs” (「穿官袍戴假髮演一台爛戲」) published on 18 February 2021[226]; and

•  “Sedition” is used as a legal weapon "Incitement" is used as a legal weapon” (「『煽動』作為一種法律武器」) published on 20 May 2021.[227] 

Other writers suggested by D1 after the NSL

295.  According to Yeung Ching-kee, the publication of Apple Daily was under D1’s supervision up to December 2020 when he was remanded in custody and he took an active role in choosing writers for Apple Daily. The following serves as examples.

296.  On 26 March 2020, D1 through his secretary passed to Yeung Ching-kee a letter dated 20 March 2020 from a person “Siu Wah” (「小華」).[228] Attached to the letter was an article titled: “A brief talk about Xi Jinping’s ruling style”[229]. In the post-it note stuck to the letter, D1 wrote: “Brother Li Ping, I have not read this article. Please read and see if it’s useful. Thank you.”  Yeung Ching-kee said that he made some alterations to the title and the text of the article. It was then published in Apple Forum on 2 April 2020 as: “Xi Jinping's Subjective Wish for Governing Style” (「習近平主觀所願的治國風格」).[230]  Yeung Ching-kee explained that as the article was forwarded by his boss, even though D1 said he had not read it himself, he definitely would publish it if there was no problem with the article.

297.  On 2 September 2020, D1 passed to Yeung Ching-kee a letter dated 15 August 2020 from “New Reader” (「新讀者」).[231] In the yellow post-it note attached to the letter, D1 wrote, “LI Ping, comments from this reader are worth having a look, thank you”. D1 thought that the New Reader was talking about writers of the forum page, but in fact they were writers for the Supplement. According to Yeung Ching-kee’s recollection, D1 did not ask him anything further about this letter and neither did he.

298.  On 14 September 2020, D1 told Yeung Ching-kee that he heard that the commentaries written by Ma Tit-wing on China and Japan were impressive and he asked that Yeung Ching-kee invite Ma to write commentaries for Apple Daily.[232]  Yeung Ching-kee replied that Cheung Kim-hung had already invited Daizo Amakssu (「甘粕代三」) to write but he would see if any arrangement could be made for Ma Tit-wing. On the other hand, Yeung Ching-kee forwarded to D1 two voice messages[233] of D1 and Professor Cai Xia (「蔡霞」) of Central Party School. Yeung Ching-kee informed him that Professor Cai was being approached. In the recording, Professor Cai praised Apple Daily for its role in the anti-ELAB movement. D1 said that “As Hongkongers, we will continue to fight, that is our duty.”[234]  As to why Professor Cai was approached, Yeung Ching-kee explained that it was pursuant to D1’s earlier request for a regular change of writers. At the time, Professor Cai Xia was in the United States and she was critical of the human right situation in China. Subsequently, however, Yeung Ching-kee informed D1 that Ma Tit-wing had declined the invitation.[235] 

Chapter 11 – Instances of D1 giving editorial directions

299.  It was the evidence of the prosecution witnesses from Apple Daily that D1, apart from setting the editorial policies of Apple Daily, from time to time he gave them specific editorial directions. The following serves as examples.

Speech of Consul General Kurt Tong

300.  On 4 March 2019, D1 and Chan Pui-man had WhatsApp exchanges about a recent report from Washington Times[236] about the US Consulate in Hong Kong expressing concern about the challenges to “Hong Kong’s autonomy” and the response of the Chinese Government[237]. D1 asked Chan Pui-man to “make it big”[238]. Chan Pui-man informed D1 that the relevant speech of Consul General Kurt Tong had already been covered in A2 Section of Apple Daily[239]. However, since Chan Pui-man thought that D1 placed so much emphasis on this particular piece of news, she told D1 they would continue to follow it up.[240] She agreed that D1’s view on the importance or otherwise of a particular news item had a bearing on her editorial decision.

Meeting between Anson Chan and Pence

301.  On 23 March 2019, D1 forwarded a WhatsApp message first to Lee Wing-tat[241] and then also to Cheung Kim-hung[242] and Chan Pui-man[243] a photograph showing Anson Chan shaking hands with Vice-President Mike Pence. D1 also copied to Lee Wing-tat[244], Cheung Kim-hung[245] and Chan Pui-man[246] respectively a report by James Cunningham of his meeting with Anson Chan before she met with Pence. It was said that Anson Chan was “fully aware of the need to defeat” the extradition law but it seemed that there was little or no “democratic” cohesion.

302.  At the same time, D1 told Cheung Kim-hung and Chan Pui-man to use the aforesaid news to its “maximum effect”[247]. Therefore, Cheung Kim-hung asked Law Wai-kwong to conduct interviews in relation to the meeting and to place the news report at the focus area on the Apple Daily mobile app. Chan Pui-man also had the news covered in A1 Section of Apple Daily on the following day.[248]  In cross-examination, Cheung Kim-hung agreed that the news about the aforesaid meeting was a particularly newsworthy one which was also covered by other local newspapers in Hong Kong including Sing Tao, South China Morning Post and Ta Kung Pao. He also agreed that the photograph of the meeting used by Apple Daily was also used by other newspapers.

303.  For the sake of completeness, it is noted that Lee Wing-tat responded to D1’s aforesaid messages by suggesting that they should gather forces to arouse the public of the danger of the law and that the pan-democrats should act together. D1 agreed to this.[249]  A dinner gathering was then arranged for D1 to meet with “Martin”, “Albert”, Lee Cheuk-yan and “Tall Man” to discuss the matter on the following day[250].

D1 commenting on Apple Daily’s headline

304.  On 30 March 2019, D1 talked to Chan Pui-man about a headline of a news report that day on an anti-ELAB procession which was to be published in Apple Daily[251]. D1 said that the headline was well-done, “just that the following is not mentioned: reporting news about Chinese mainland can be regarded as exposing national secret any time, and articles criticizing Chinese Government can be labelled with the crime of subverting state power.”  He continued to say: “Please continue to report the dangers that the Hong Kong businessmen face in Chinese Mainland, just to scare those businessmen, so that the pro-establishment camp dare not make any rash move”.

305.  Chan Pui-man said that she regarded that D1 was giving her a direction and she passed it on to her colleagues of the Print Form of Apple Daily.

Lam Wing-kee’s departure for Taiwan

306.  On 26 April 2019, in D1’s WhatsApp massage to Cheung Kim-hung, D1 said[252],

“Kim-hung, Lam Wing-kee went to Taiwan to take refuge yesterday due to the Fugitive Offenders Ordinance. We have had exclusive photos and reports and only lack an interview with him. I wonder if anyone in Taiwan knows his whereabouts. Thanks. Lai.”

307.  By way of background, Lam Wing-kee was the former owner of Causeway Bay Bookstore who had been detained in the Mainland for a period of time. After Lam’s return, he and Albert Ho Chun-yan held a press conference about the detention. Subsequent to that, Lam did not return to the Mainland and was therefore wanted by the Mainland authority.

308.  Cheung Kim-hung explained that D1 was telling him that he would like to make use of the headline news of Apple Daily to boost the number of the procession which was to be held on 28 April 2019. In order to make it headline news, they must get hold of Lam Wing-kee and conduct a telephone interview with him. It happened that Cheung Kim-hung was in Taiwan on a business trip on that day. Having learnt the general whereabouts of Lam, Cheung Kim-hung went with a photographer of the Taiwan Apple Daily to interview Lam. Cheung Kim-hung reported that to D1 who replied, “Very gracious.”

309.  After the said interview, Cheung Kim-hung sent the manuscript to Apple Daily Taiwan, Law Wai-kwong and Chan Pui-man for the purpose of publication. Cheung Kim-hung reminded Chan Pui-man that it was D1’s desire to use this piece of news as the headline news with a view to boost the number of anti-ELAB protests and asked that it be reported on A1 of Apple Daily. Accordingly, the interview was published on 27 April 2019[253] in which it was written:

“As the vicious bill looms, everyone is alarmed by the danger they are in. (While) he cannot take part in the 4.28 March against the vicious bill, the people of Hong Kong will have to take to the streets. He (him)self was a Hongkonger being oppressed (and) was resigned to leaving. (One) must step forward to resist the political regimes of Hong Kong and the Mainland. The people of Hong Kong are not to pretend to be asleep.”

310.  In cross-examination, Cheung Kim-hung said that he was not aware that the cameraman of RTHK who provided the information of the news to D1 had also provided the same to other media in Hong Kong. Cheung Kim-hung agreed, however, that it was a matter that concerned the society and so it was newsworthy. He disagreed that he had not asked Chan Pui-man to put that news in A1 section (front page) of Apple Daily. He said he told her that it was D1’s wish to have the news on A1.[254]

311.  In the small hours of 26 April 2019, D1 texted Chan Pui-man about the departure of Lam Wing-kee from Hong Kong to Taiwan[255]. However, she did not read those messages until she woke up at around 11 am. She immediately contacted Law Wai-kwong and was told that colleagues of the Digital Version were dealing with the news and were going to post it on the digital platform at 3.00 pm. Eventually, this piece of news went to A1 of the newspaper. Chan Pui-man said it was her decision to publish the news on the front page of the Print Form of Apple Daily.

Protest on 28 April 2019

312.  On 27 April 2019, D1 messaged Cheung Kim-hung[256] and Chan Pui-man[257], saying that although the aforesaid news about Lam Wing-kee could help the protest on the following day, the atmosphere was still too quiet. He asked Cheung Kim-hung to think about what they could do to urge people to take to the streets. Actually, about a week before the protest, there was already an appeal in Apple Daily to the public to protest against the “evil law”.[258]

313.  Later on the same day, D1 forwarded to Cheung Kim-hung[259] and Chan Pui-man[260] the comments of the former Governor Chris Patten (apparently with the help of Benedict Rogers) on the proposed ELAB. Cheung Kim-hung responded to D1 by saying to D1 that the comments given by Chris Patten would be published in the Print Form of Apple Daily on the following day and that real-time news could also be published synchronously that night. To this, D1 replied, “Thanks. LAI”.[261]  Chan Pui-man understood that D1 was directing her to publish the comments of Chris Patten on the ELAB in Apple Daily. Therefore, the photograph and comments of Chris Patten were respectively published on the front page and A2 Section of Apple Daily on 28 April 2019.    

314.  According to Chan Pui-man, after the protest, Apple Daily continued to cover news opposing the extradition law, including the statement attributed to D1 said to have been made on 21 May 2019 at the Foreign Correspondents’ Club that “Hong Kong will be over after the legislative amendment”.[262] Chan Pui-man said that Apple Daily covered it because of D1’s clear stance.

Materials provided to Chan Pui-man on 4 June 2019

315.  On 4 June 2019, D1 forwarded to Chan Pui-man the following materials:

(a) the link from a website titled “Hong Kong’s First Political Asylum-Seekers - Coffee House”.[263] That was from the WhatsApp exchange between Benedict Rogers and D1.[264]  In fact, Chan Pui-man had already received the same link from Benedict Rogers on 1 June 2019[265];   

(b) messages between D1 and Lee Cheuk-yan concerning a video footage of Chris Patten and its transcript[266]. Chan Pui-man confirmed that a summary of the video footage of Chris Patten was reported in the Print Form of Apple Daily; and

(c) the link to an article in SCMP titled: “Current extradition law provides firewall to protect Hong Kong’s legal system”[267] which D1 received from Benedict Rogers.[268]

Protest on 9 June 2019

316.  On 31 May 2019, D1 forwarded to Chan Pui-man a message from Tung Chiao (former publisher of Apple Daily) concerning the protest which was to be held on 9 June 2019[269]. Tung Chiao said that the candidate who came out to appeal to the public to take to the streets was quite critical and he proposed Martin Lee and Bishop Zen. Tung went on to say that if Apple Daily could arrange a column to allow some influencers to say something about ELAB, there would be many more people coming out on 9 June. He concluded by saying,

“What we are now advocating is not that Hong Kong needs democracy, instead, what we are advocating is that the value of Hong Kong must not be destroyed by CCP.”

D1 asked Chan Pui-man for a talk about the proposal of Tung Chiao[270].

317.  According to Chan Pui-man, they subsequently discussed Tung Chiao’s proposal. D1’s emphasis was to get influential people in the legal field to talk about the ELAB. Chan Pui-man then discussed with her colleagues and attempted to contact suitable people to talk about the subject. On 3 June 2019, D1 told Chan Pui-man that they should find and interview some “petition students” (「聯署學生」) so as to inspire other students to come out on 9 June. Chan Pui-man replied that she got it[271]. According to Chan Pui-man, she then asked her reporters to follow up on this.

318.  On 9 June 2019, D1 sent Chan Pui-man a number of photographs showing anti-ELAB posters being posted in various places in Hong Kong.[272] It was estimated that over one million people participated in the protest. The two of them were excited about it and they discussed the headline to be adopted for the news.

Benedict Rogers’ hunger strike

319.  On 10 June 2019, D1 forwarded to Chan Pui-man messages from Benedict Rogers concerning his proposed hunger strike in support of the protest in Hong Kong[273] as well as his remarks to Benedict Rogers,

“That’s a great idea! I hope other foreign supporters in other countries emulate. Great idea! Thank you! Cheers.”[274]

320.  In fact, Chan Pui-man had also received the same message from Benedict Rogers the day before[275] and she thought that D1 knew about it. She gathered that Benedict Rogers thought that she and her colleagues might not attach enough importance to the materials he sent her. She also thought that D1 considered that the information was newsworthy, or else he would not have passed the same to them. Therefore, even though D1 added that, “Don’t know what you want to do with it. It’s from Benedict Rogers”[276], she thought that D1, as their boss, was making a recommendation which she felt unable to decline.

321.  Since D1 kept sending her similar contents from Benedict Rogers and from Hong Kong Watch asking them to publish those contents or to deal with the relevant articles, she therefore came to the conclusion that D1 attached more importance to these matters and wished to help them.

Protest on 16 June 2019

322.  Cheung Kim-hung was referred to a series of WhatsApp messages he had with D1 between 13 and 14 June 2019 concerning the anti-ELAB procession which was to be held on 16 June 2019[277].

323.  Cheung Kim-hung said that D1 told him that the pan-democrats would like to have 100,000 long flags to be distributed to protesters for them to hang outside their windows. At the time, the Confederation of Trade Unions was calling for “Three Strikes”, namely “Boycott Work, Boycott Class, Boycott Business” (「罷工、罷課、罷市」). Therefore, Cheung Kim-hung was asked to write the slogan in Chinese calligraphy and have them printed on the back of the long flags. It was hoped that the long flags would help to promote the anti-ELAB movement and the proposed boycotts. D1 said that Wong Wai-keung (the administration director of the Next Digital) would be approached to deal with this. Cheung Kim-hung therefore prepared the long flags in collaboration with Wong Wai-keung and a sample was shown to D1[278]. D1 was satisfied with the design of the long flags[279].

324.  Eventually, however, D1 decided not to distribute the long flags as the ELAB had been deferred and someone had taken his or her own life because of the amendment bill.

325.  In cross-examination, it was put to Cheung Kim-hung that it was his idea, rather than that of D1, that the long flags be inserted into the newspaper for distribution. Cheung Kim-hung disagreed and insisted that it was not his idea that the long flags were to be inserted in the newspaper. However, he might have gotten the idea from Wong Wai-keung.

Apple Daily’s financial support for anti-ELAB movement

326.  Cheung Kim-hung was asked about a series of WhatsApp messages he had with D1 between 15 and 16 June 2019[280] which was about using the revenue of Apple Daily to support the anti-ELAB movement.

327.  Cheung Kim-hung gave the background as follows. D1 decided that between 1 July and 1 September 2019 there would be a $3 handling charge for readers who accessed the Apple Daily website, out of which $1 would be set aside for a fund to assist protestors for their future medical expenses and litigation fees. It was hoped that by this way people who supported the resistance and the anti-ELAB movement would be encouraged to subscribe to Apple Daily.

328.  On 5 July 2019, Cheung Kim-hung reported to D1 “Boss, by 2 am today (the 5^th day), the total number of members paying charges to Hong Kong Apple Daily exceeded 300,000!” and that “The number of upgraded Next Media members of Next Animation Studio exceeded 300,000!”[281]  Subsequently, the accounts department was asked to issue a payment cheque to the fund.

Suspension of ELAB and the publication of “anti-authoritarianism June”

329.  On 14 June 2019, D1 and Chan Pui-man had exchanges about the government’s suspension of the proposed ELAB. Despite the suspension, D1 said, “We can only gradually up (our) game to meet the arrival of sly scheme(s)”.[282]

330.  On the following two days, there were further exchanges between them on the same topic. The headline on the front page of Apple Daily on 15 June 2019 read, “Evil law to be suspended but not withdrawn/ Carrie LAM stalling (tactic) on the eve of the procession/ Take to the streets tomorrow regardless”.[283] Chan Pui-man said that the headline took on board the view of D1 that the suspension of the bill was only a strategy and that the purpose could be achieved by nothing other than the withdrawal of the bill.

331.  On 1 July 2019, the front page of Apple Daily bore the headline, “The draconian law has not been withdrawn/Carrie LAM has not resigned/Go to the street again today”.[284] The newspaper came with a free booklet titled “Anti-authoritarianism June” (「逆權六月」)[285], which was mainly a collection of photos taken by Apple Daily, pictures of protests in the movement opposing the ELAB. Chan Pui-man agreed that by the use of the word “Anti-authoritarianism” (「逆權」), the focus had changed so that it was then not so much about the bill but the government.  

Storming of LegCo

332.  On 2 July 2019, there was a series of exchanges between D1 and Chan Pui-man on the news about the storming of the Legislative Council Building.[286]  D1 also copied to her his WhatsApp exchanges with Nick Cheung.[287] In the copied messages, D1 asked Nick Cheung whether they could find more young people to speak out about their feelings and he expressed the hope that this might ease the negative impacts of the incident.[288] 

333.  Chan Pui-man considered that D1 was giving instructions about the perspective in which the news was to be covered in order to achieve his purpose. She said the instruction was carried out.

Article by Lester Shum

334.  Also on 2 July 2019, D1 forwarded to Chan Pui-man an article written by Lester Shum[289], which responded to the then CE’s speech made at a media session where she condemned the recent violence. Shum wrote, among other things[290]:

“Carrie LAM, please open your eyes wide. No matter how loudly (one wrong character) you say that we are thugs ‘are thugs’(sic), no matter how powerful your public-opinion-swaying machine is, (you) know full well that you have nothing. Don’t lie to yourself any further. All you have is the violence stemming from the system. This rebellion cannot be more justified. (It is) a legitimate rebellion against the structural violence that has repeatedly, over and over, time and again oppressed the people.

This humanoid creature who claims to be our “Chief Executive” spoke after a blood-stained “ceremony”, pledging to “change the Government’s style of governance”. But you know what (?) All along, your style of governance has been (your) counting on the (use of) absolute violence (enabled) by the system to deceive, oppress and violate (one wrong character) the people.

And that is the only “style” (demonstrated) by your logic of governance. That is, bullying.

The (“)extreme violence(”), which you have been speaking of, was merely the capturing of a building” that had for the whole (one wrong character) time been violating and bullying us.”

(「林鄭月娥，請你睜大眼睛吧。無論你如何聲撕力竭地說我們是暴徒是暴徒，無論你的輿論機器有多強大，其實心知肚明：你甚麼都沒有，不要再騙自己了，你擁有的只是來自制度的暴力。這是一場合理不過的反抗，對這個周而復始、日復日、夜復夜地壓迫著人民的制度暴力的一個正當反抗。

這個聲稱是我們「特首」的人形生物，經歷一個染滿鮮血的「典禮」說之後，信誓旦旦要「改變政府施政風格」。但是你知道嗎，一直以來，你的施政風格，就是依靠就制度上的絕對暴力來欺騙、欺壓、欺悔人民。

而這也是你施政邏輯中惟一的「風格」，就是霸凌。

你口口聲聲的極暴力，只是佔領了這座一整以來對我們施暴、霸凌的建築物。」)

335.  D1 then asked Chan Pui-man, “Can we in some way publish this article? Or even do an interview with him for illustration?”[291] Chan Pui-man told D1 that the article could be published in Apple Forum. Subsequently, she forwarded Shum’s article to Yeung Ching-kee and asked him to follow up.[292]  Yeung Ching-kee replied to Chan Pui-man on the same day that if Shum agreed, his article would be given a whole page and the publication of the articles of other writers would be deferred.[293]

D1’s interview by Albert Ho

336.  On 25 July 2019, there was a report in Apple Daily (Digital Form) of an interview of D1 by Albert Ho Chun-yan in the online programme “Encountering Zhongnanhai”. It was said that D1 said the following in the interview[294]:

“Jimmy Lai pointed out that for many years, social movements in Hong Kong have not been involved by foreign powers, it has always been defending our core value, however, since the development of the Anti-Extradition movement, which needed more and more international support, ‘because international support and international speech are the only effective ways that can stop the tyrannically outrageous suppression by the Chinese Communist Party’…

Jimmy Lai said that earlier, when he met with the US Secretary of State, Michael R. Pompeo, the other side asked him, what can the United States do? He believes that the United States should sanction the current leaders in Hong Kong and the Mainland who have repressed and cracked down this movement, ‘wait until they know that the bad things they did have consequences’. He bluntly said that foreign countries are now required to pay attention to the situation in Hong Kong.”

337.  Cheung Kim-hung said that after the online programme, D1 gave him a phone call telling him that he (D1) had made reference to the earlier meeting with Mike Pompeo. D1 said that a request had been made to the US for assistance in the anti-ELAB movement and he asked Cheung Kim-hung to follow up on this matter, that is Cheung Kim-hung should make it big. Therefore, Cheung Kim-hung notified Law Wai-kwong, asking him to follow up on this. According to Cheung Kim-hung, prior to that interview, D1 had mentioned to him in a private chat about sanctions. However, the interview was the very first occasion that D1 formally and publicly referred to imposing sanctions on Hong Kong and Mainland officials.

338.  In cross-examination, Cheung Kim-hung disagreed that D1 had never told him that during the interview with Albert Ho he (D1) had referred to the meeting with Pompeo and requested US assistance for the anti-ELAB movement.

Video talks

339.  According to Cheung Kim-hung, D1 had given instructions to (i) increase the number of video talks of Apple Daily to be posted onto the Action News; and (ii) interview people from the opposing camp such as the protestors. That was to provide an opportunity for them to explain why they had to come out to protest, to tell what they had gone through and what difficulties they had encountered. Law Wai-kwong, who reported to Cheung Kim-hung, was responsible for deciding who would be invited to attend interviews. Cheung Kim-hung and Law Wai-kwong followed the instructions of D1.

340.  Cheung Kim-hung said that during the latter half of 2019, the Hong Kong news section was wholly devoted to the reporting of this topic of news. The target audience was subscribers to the Action News. By the beginning of July 2019, there were about 300,000 of those. Young people nowadays relatively speaking did not read physical newspapers very often. It was also hoped that more young people could watch and gather the news and the footage online in relation to the anti-ELAB Movement and also participated in it.

341.  In cross-examination, Cheung Kim-hung was asked about his WhatsApp exchanges with D1 on Apple Daily’s video talk platform[295]. It was then put to Cheung Kim-hung that D1’s idea was that it was a lifestyle channel and that it was Cheung Kim-hung’s idea to turn the “video talk” into something political. As to this, Cheung Kim-hung disagreed.

Sympathetic reporting of protests

342.  Cheung Kim-hung said that after D1’s aforesaid visit to the US, the editorial policy of Apple Daily concerning the anti-ELAB movement became more radical. For instance, in lunchbox meetings, as well as in private meetings between D1 and Cheung Kim-hung, D1 said that there should not be any division between the peaceful protestors and the valiant protestors. D1 also said the resistance should be conducted on a long-term basis. Cheung Kim-hung would convey D1’s view to his colleagues, and senior staff members involved in editorial would also know D1’s views from lunchbox meetings. As a consequence, when Apple Daily reported matters about the movement, it would report in a sympathetic light and attributed the worsening of social situation to the conduct of the Hong Kong Government and the CCP regime.

343.  Reference was made to the following reports in Apple Daily which Cheung Kim-hung said was in line with D1’s editorial policy:

(a)  a report published on 30 September 2019 titled “Gunfire Bombarded HK Island, Hundred Injured (and) Arrested, Crazed Police Violence the Welcome to October 1” (「槍彈狂轟港島 百人受傷被捕 瘋狂警暴迎十‧一」)[296];

(b)  a report published on 7 October 2019 titled “(Anti-)mask law set off fury, Entire city resisted (and) fought back” (「蒙面法掀怒火 全城抗爭還拖」)[297];

(c)  a report published on 9 October 2019 titled “Peaceful turned fearless, ‘It’s the Regime that forced me to evolve’” (「和變勇 『是政權，逼我進化』」)[298]; and

(d)  a report published on 15 November 2019 titled “Dragon Slayers Borderline Calling - All people be valiant / Three strikes” (「屠龍隊邊緣呼喚 全民勇武/三罷」)[299].

344.  In (a) above, it was said in the first paragraph by the reporters:

“The Chinese Communist Party hoped to dress its 70^th Anniversary of establishment up, but the people of Hong Kong, who were in full force striving for democracy and defending (their) freedom, defied the police-imposed martial-law-in- disguise and continued to take to the streets as (they) had linked up with 24 countries and 65 cities around the world in organising the “9.29 Global Anti-Totalitarianism March” (in the) respective (locations). The Hong Kong Police had taken the excessive use of violence and abuse of authority to a new level (and) had been dispersing protestors in Causeway Bay since before noon, yet fearless citizens worked through surrounding tear gas and continued (their) journey. Heavy clashes between the police and citizens later erupted in Admiralty and Wan Chai, apart from (dishing out) “all-you-can-eat tear gas” and (deploying) water cannon vehicle(s), the police also fired a variety of ammunitions including live rounds. Throughout the day, over a hundred protestors were subdued (and) arrested, at least 25 were sent to hospital (and) at least one in serious condition.”

（「中共欲為建政70周年塗脂抹粉，但全力爭取民主捍衞自由的香港人，無視警方變相戒嚴繼續上街，跟全球24國65城市分別組織「9.29 全球反極權大遊行」。香港警察濫暴濫權全面升級，中午前已在銅鑼灣驅散示威者，惟無畏無懼的市民撥着催淚煙再踏征途。金鐘及灣仔及後爆發嚴重警民衝突，除「催淚彈放題」及水炮車外，警方更發射實彈在內不同彈藥，全日逾百名示威者被制服拘捕，最少25人送院，最少1人情況嚴重。」）

345.  In (b) above, it was said in the first paragraph by the reporters:

“Chief Executive Carrie Lam Cheng Yuet-ngor claimed to “stop violence (and) curb disorder”, yet (she) added fuel to the flames with the (imposition of an) evil law, depriving Hong Kong people of their freedom more directly. Yesterday, i.e. the second day of the official enforcement of the “Prohibition on Face Covering Regulation”, there were massive marches against the draconian law in various districts on Hong Kong Island and in Kowloon. A lot of citizens insisted on protesting with faces covered. In many districts, roads were blocked and MTR stations were damaged. Riot police were deployed multiple times where they went on to abuse their power and use excessive force, including the firing of large numbers of tear gas canisters and shootings, to disperse (people). After nightfall, the police conducted massive searches in many districts. Large numbers of protesters were arrested in various districts.”

(「特首林鄭月娥聲言「止暴制亂」，卻以更直接剝奪港人自由的惡法火上加油。《禁止蒙面規例》正式實施第二日，港九多區昨均有大規模反惡法遊行，大批市民堅持蒙面抗爭，多區均有堵路及破壞港鐵站，防暴警察多次出動，續以濫暴濫權方式驅散，包括發射大量催淚彈及開槍，入夜後警方在多區大搜捕，各區大量抗爭者被捕。」)

346.  In (c) above, which was an interview of two protestors, Lee and Chan, the reporter started by saying:

“As early as in June, when the anti-China extradition (bill) movement just started, Mr. LEE [pseudonym] and Ms. CHAN [pseudonym] already took part in it. They both stated that they believed in [peaceful, rational, non-violent]. A hundred days have gone by, they have become the fearless on the front-line, (or) even have crossed the bottom line of casualties. This change was not voluntary, but was forced by the government.”

（「早在反送中運動剛開始的6月，李先生（化名）與陳小姐（化名）已參與其中，他像均表示自己是和理非信徒。百日過後，他們已變成前線勇武，甚至已衝破人命傷亡這條底線，這種改變並非出於自願，是政府逼成的」。）

347.  In (d) above, which was an interview of four members of a band of valiant protestors known as “Dragon Slayers”, the reporter portrayed them in a positive light. The first paragraph said:

“The battle for No. 2 bridge by CUHK students has rocked the city. Those who helped to guard the front of the gunfire included the legendary “Truly Valiant” squad - the Dragon slayers. In the past five months, countless protesters have been arrested and injured but only one of the five demands has been addressed. At a time when the movement is at a bottleneck, the four Dragon Slayers interviewed by Apple Daily opined that to mitigate the pressure on the frontier or even to win, a choice has to be made between all people be valiant or all people go for Three Strikes. “Our purpose is a hope of awakening more people. There are only I0-odd people with us, (we) can't bear up for long.” ”

(「中大學生二號橋保衞戰震撼全城，協助守在槍林彈雨前方，更有傳說中「真.勇武」小隊 – 屠龍。五個月以來抗爭者被捕受傷不計其數，但五大訴求僅得一項獲回應，在運動陷入瓶頸之際，四名屠龍成員接受《蘋果》專訪，認為要緩解前線壓力甚至取得勝利，必須在全民勇武或全民三罷中二擇其一，「我哋嘅目成就係想希望有多啲人醒覺，我哋得十幾個人，捱唔到好耐咋！」）

348.  Moreover, we note that in an article published on 18 October 2019 titled “Social Feature: Save our own comrades” (「社會專題：自己手足自己救」)[300], the content advocated for unity among protestors and called for the saving of companions from being arrested by the police in the discharge of their duties. It also advocated and commended violence in protests, claiming that peaceful protestors and valiant protestors would act together and perform their respective duties. The following was what the reporters wrote in the first paragraph of the article: 

“In relation to the Anti-ELAB, since June to today, over 2,000 persons have been arrested by the police. There were scenes of police brutality in relation to the bloodshed of those arrested persons who were beaten even after being subdued. These have caused an increase number of protestors who support the use of force to counter violence. “Peaceful protesters and valiant protesters will not part ways” and each one performs its duties at its position. From the promotional material to the scenes of demonstration, there were volunteer first-aiders, smoke extinguishers, fire magicians, etc. Gradually there were even circumstances of “saving the comrades” and [“settled privately”]. A clip of a Mong Kok protester kicking the police with his leg flying in the air and rescuing his companion on Sunday is even regarded as a “textbook” by netizens. The young people rushed to the Special Tactical Contingent (STC) of police to bravely rescue the arrested comrades at the risk of being arrested. They confessed that they were very frightened that time, but compared to their own fears, they were more afraid of losing their comrades and that Hong Kong would lose this generation. This is because Hong Kong people can no longer endure that fact that the young people are devoured by the regime one after another.”

(「逆權運動6月至今，警方已拘捕超過2,000人，被捕者遭制服後仍被打至頭破血流的警暴場面，令支持以武制暴的抗爭者越來越多。「和勇不分」各司其職，由文宣到示威現場有義務急救員、滅煙隊、火魔法師等等，更陸續出現「救手足」、「鶳」等情況，周日旺角示威者凌空飛腳踢警、救回手足的片段，更被網民視為「教材」，年輕人甘願冒上被捕風險，衝向警方速龍小隊勇救被捕手足，他們坦言當下十分驚惶，但對比自身恐懼，他們更害怕失去手足，香港會失去這一代人，因為香港人已不能再承受年輕人一個個被政權蠶食。」)

349.  We note also that on 5 January 2020, D1 published in his column “Sink or Swim, Smile” an article of D1 titled: “Keep going together with peaceful and valiant spirit in 2020 (「2020 和勇繼續一起撐下去」)[301]. D1 confirmed that he took part in the protest on 1 January 2020 with Martin Lee and Albert Ho. He expressed approval of those who shouted slogans which included “Liberate Hong Kong, Revolution of Our times” and “Death to all the black cops and their families”. He said, “Hong Kong is a blessed place to have such outstanding and brave young people with such hatred for evil”. D1 said that he would continue to fight and insist on fighting for the “Five Demands, Not One Less”. D1 further suggested that the police were impersonating as protestors to create riots, alleging that the police were treacherous and full of lies and “the worst enemy of the public”.

“Support the Student Subscription Plan”

350.  Cheung Kim-hung was referred to a full page advertisement for “Support the Student Subscription Plan” published in Apple Daily on 19 November 2019.[302] In the middle of that page it read, 「撐學生 抗暴政」（“Support the Students, Fight the Tyranny”）.

351.  Cheung Kim-hung said that Apple Daily called on people to donate $300 for each student between 10 and 20 years old so that students might read Apple Daily for free for one year. At that time, D1 was very supportive of young people going out and putting up resistance against ELAB and the Communist regime and he appreciated their sacrifice. He hoped that they could continue to be loyal readers of Apple Daily and read the news in relation to the resistance movement. D1 was aware that many of the students did not have any credit cards or any financial means to subscribe to Apple Daily. Therefore, he wanted to appeal to readers for donations.

“Support Small Shops”

352.  Cheung Kim-hung remembered that during the course of a lunchbox meeting with the Advertising Division in 2019, D1 instructed colleagues of the Advertising Division to work on “Support Small Shops” in the Classified Post. This was because at that time people who participated in the resistance movement would choose to patronise shops on the basis of their political stance. The supporters of the resistance movement did not patronise shops belonging to the blue circle or pro-establishment. This was the so-called “yellow economic circle”.

353.  Upon D1’s instruction, Cheung Kim-hung discussed this matter with the supervisors of the Advertising Section. Apple Daily allowed the small shops to advertise free of charge in the Classified Post for a certain period of time. The name of the campaign was called “Classified Post Campaign to Support Small Shops”. Owing to the Covid-19 pandemic, the plan came to a halt until mid-2020 when it was re-started.

“One Hongkonger, One Letter to Save Hong Kong”

354.  Cheung Kim-hung was shown his WhatsApp exchanges with D1 on 22 May 2020[303] which was about the “One Hongkonger, One Letter to Save Hong Kong” Campaign.

355.  Based on the WhatsApp records, on 22 May 2020 D1 asked Cheung Kim-hung to consider that Apple Daily initiate a “One Hongkonger, One Letter to Save Hong Kong” campaign and publish a front-page advertisement calling for Hong Kong people to write letters to the President, the Vice-President, Secretary of State, Congressmen of the United States and so forth, asking them to intervene[304]. D1 later informed Cheung Kim-hung that “We have informed Nick of making the design and Wai-keung of the printing matter”[305].

356.  By way of background, Cheung Kim-hung explained that on the previous day there was an announcement that National People’s Congress would enact the NSL. According to Cheung Kim-hung, after the WhatsApp exchanges he had with D1 that morning, D1 gave him a phone call discussing with him the matter and said that he wanted the President and Vice-President of the United States to impose sanctions on China. It was D1’s hope that the President and the Vice-President of the US would save Hong Kong by taking action to interfere by imposing sanction or other measures against the Chinese Communist Party.

357.  As a result, a full-page advertisement (containing a template letter) for the Campaign was posted in Apple Daily on 24[306] , 25[307] and 27[308] May 2020 respectively where it said:

“China’s Communist Party is now cancelling Hong Kong’s high degree of autonomy and inserting Communist Party rule over Hong Kong. They have made their clear intent is to destroy Hong Kong’s most valuable asset, the rule of law.

Only through international pressure will the Chinese Communist Party ever reconsider this disastrous course of action. Without that pressure – and the active insistence of the United States – Hong Kong will change from a city operating under the ‘rule of law’ to one operating under Beijing’s ‘rule by law’. This would be a tremendous loss for the world including the United States, which has a tremendous investment in our city.

In Hong Kong today you are already respected as one of the few world leaders willing to confront China’s bad behaviour. We now need both your public support and the diplomatic efforts of the United States to help keep our city a centre of International trade and home for freedom.” 

The advertisement was also uploaded on Apple Daily Website[309]. People were invited to send the letter to President Trump through Twitter, Facebook or to sign the letter online. On 24 May 2020, there was also a tweet[310] about the campaign in D1’s Twitter account.

358.  On 26 May 2020, Cheung Kim-hung texted D1[311] and said that Sang Pu said in a D100 programme that there would be an announcement on the following Thursday (US time) in respect of the NSL on measures including sanctioning Hong Kong and Chinese officials involved in the legislation; suspending Hong Kong’s status as a separate customs territory; and revoking the special customs status of Hong Kong. D1 replied by saying that he thought what Sang Pu said was true but it was not a powerful deterrence to China. He expected harsher sanction[312].

359.  On 27 May 2020, Cheung Kim-hung forward to D1 the news:[313] “The NPC PLA delegation meeting stresses to step up preparation for military struggle”. D1 replied by saying,

“Now CCP is displaying threats to cow us on all sides. It’s a sign of their weakness because they’re afraid of HK people’s power, thus a re-enforcement to HKers that we must fight on! The scourge of our freedom leaves us no other options.” [314]

“We must, especially since I myself decided to throw caution to the wind for the rule of law and freedom of Hong Kong. Thanks. Lai”[315]

360.  In cross-examination, Cheung Kim-hung disagreed with counsel that there was no telephone call between him and D1 regarding “One Hongkonger One Letter to Save Hong Kong” and D1’s instructions were only in WhatsApp. As to counsel’s suggestion that international pressure could, for instance, be a simple phone call between world leaders, Cheung Kim-hung said that it was not what D1 contemplated at that time. All along D1 said highly of the unilateral policy adopted by Trump, that is, he had the guts to start a trade war with China trying to make or making China comply with the values adopted by the Western countries. Cheung Kim-hung believed that this letter was meant to request Trump to confront China.

Not to go against Trump

361.  On 2 June 2020, D1 forwarded a message to Cheung Kim-hung which read[316],

“Yue-yam, please ask the colleagues of the International section not to against Trump by following New York Times and CNN. Apple Daily relies on the support of the Trump administration to survive. It’s not good to do so. Thanks. LAI”

“Yue-yam” was the publisher of Taiwan Apple Daily. Cheung Kim-hung replied[317],

“Got it, boss. I also asked the Hong Kong colleagues of International to note it last week. Thanks.”

362.  By way of background, Cheung Kim-hung explained that at the time, there was the “One Hongkonger, One letter to save Hong Kong” campaign. It was hoped that President Trump would take action by interfering with the enactment of NSL. At the time, D1 was having interviews with foreign news outlets on a very frequent basis. He was very expectant that Donald Trump would take actions very soon. Therefore, he gave instructions to them not to use news articles of those media outlets that were against Trump, including CNN and New York Times. According to Cheung Kim-hung, D1 actually had already previously given the same instruction to him in the week before and he related the same to Law Wai-kwong and those in the international news section. He also related the same to Chan Pui-man.

363.  Cheung Kim-hung said that at a later time, around the period of the US presidential election between Biden and Trump, D1 also gave the instruction not to publish so many comments or criticisms against Trump. His instruction was followed. D1 very much hoped that Trump could be re-elected.

Chapter 12 – D1’s articles

Introduction

364.  In due course, we will assess the credibility and reliability of the evidence of the accomplice witnesses.

365.  At this juncture, it is pertinent to note that it was the evidence of Cheung Kim-hung, the publisher of Apple Daily, that the contents of D1’s articles in his weekly column “Sink or swim, Smile” in the main opposed the HKSAR Government and the Chinese Communist Party. Chan Pui-man, who was in charge of the Print Form, testified to the various incidents where D1 gave her editorial directions on news reporting. Yeung Ching-kee, who was in charge of the Editorial and Apple Forum, considered D1’s views and stance as the “guiding principles” for his own writings and his selection of articles. Royston, who attended all the lunchbox meetings as the COO of the group during the material period of time, disagreed that the lunchbox meetings were not used to lay down editorial directions. All of the witnesses from Apple Daily said in one voice that D1 was a dominating and hands-on boss whose political views expressed in the lunchbox meetings and in his articles directed the editorial policy and political outlook of Apple Daily.

366.  In view of the above, D1’s articles and statements require close examination. In particular, it is the prosecution case that the articles of D1 (and others) in TB1 of the Trial Bundle were samples of the products of the conspiracy in Count 1. Besides, D1’s articles (including but not limited to those contained in TB1) are also relevant to Count 2 and Count 3 as they may show his intention and purpose, if any, at the material time.

367.  In order not to prolong this already lengthy Reasons for Verdict unnecessarily, we do not intend to provide a detailed analysis of all of D1’s articles and statements contained in the Trial Bundle. It suffices for us to say that we have read and carefully considered all of them. However, we would like to highlight the following.

The anti-ELAB movement

368.  It was Yeung Ching-kee’s evidence that during the anti-ELAB movement in 2019, it seemed to Yeung Ching-kee that D1’s articles, which were published on Sundays where the large-scale protests would take place, were aimed at calling people to take to the streets. Therefore, during that period when Yeung Ching-kee wrote articles or selected articles for Apple Forum, he would write or select articles which encouraged people to take to the streets and that was the main theme.

369.  An example can be found in D1’s article in “Sink or Swim, Smile” titled “Step forward to preserve the last line of defense” (「請站出來保住最後防線」)[318] published on 28 April 2019 where he wrote:

“… The amendment of the Fugitive Offenders Ordinance is to destroy “one country, two systems”, a thorn in Emperor XI’s side, and to turn Hong Kong into one country, one system on par with the mainland.

Yes, the “tyrannical extradition law” is to allow the clutches of the Central Government to tear through the last line of defense of the Basic Law and “one country, two systems”, and to strike at the heart of the core values of Hong Kong society. By then the rule of law will become the rule of man, power will become justification, and the corruption and abuse of law in the mainland will become a normal feature of Hong Kong. The rule of man is purely the rule of power. Not only do the people have to submit to the official authority without legal protection, all market activities will be dictated by power. Officials then can destroy any business as they please, or give them a free hand. Businessmen can only succumb to the wishes of officials and seek protection from officials by paying protection fees, so corruption and lawlessness will become an inevitable trend in Hong Kong.

Since we are submissive people who have become cowardly and shrinking turtles under the threat of the “tyrannical extradition law”, schools will become concentration camps for political brainwashing, and books, films and cultural activities will be censored. Since the Vatican has signed an agreement with the mainland, all religious groups in Hong Kong will be subject to the jurisdiction of the Patriotic Church, just like those on the mainland. We all have to accept it without saying anything. Do we really have to be resigned to our fate when we have nothing more to say? No, we still have options now. If we are brave enough to step forward, as long as there are many of us, it is possible that we can stop the “tyrannical extradition law” from changing our fate, and we can still protect our judicial system and our “one country, two systems” which is riddled with scars. So, step forward bravely! Please believe in the power of the masses and join the demonstration against the draconian law today!”

「… 修訂《逃犯條例》就是要摧毀「一國兩制」這個習帝的眼中釘，將香港與大陸看齊變成一國一制。

是的，「引渡惡法」就是要讓中央的魔爪撕破〈基本法〉和一國兩制的最後防線、直搗香港社會核心價值的心臟。到時法治變成人治，權力變成了理據，貪贓枉法的大陸腐敗，將湧至成為香港正常的現象。人治就是純粹權力的統治，不僅市民要在官字兩個口下委曲求全，在沒有法律保障下，所有市場活動都會被權力支配，官員可隨便扼殺任何一門生意，或放生任其自由發揮。做生意的人只好買官員的怕，尋求得到官員的保護而付出保護費，因此貪污違法將會成為香港無可避免的現象。

既然我們是被「引渡惡法」威脅成為膽怯縮頭烏龜的順民，學校便變成了政治洗腦的集中營，書籍電影文化活動都會被審查，既然梵蒂岡跟大陸簽訂了協議，香港的宗教團體將會像大陸一樣，一律受愛國教會管轄，我們都只好接受無話可說。真的要等到我們無話可說的時候只好認命嗎？不，我們現在還是有選擇的。我們若勇敢的站出來，只要站出來的是人多勢眾，我們是有可能阻止「引渡惡法」改變我們的命運，我們還可以守護我們的司法制度，和我們遍體鱗傷的「一國兩制」。勇敢地站出來吧！請你們相信群眾的力量，加入今天反惡法的示威遊行吧！」

Anti-authoritarianism Movement

370.  On 19 January 2020, in D1’s column “Sink and Swim, Smile” there was an article titled: “Absolute dictatorship. Where did XI Jinping get his confidence from? (「絕對獨裁 習近平哪來的自信」)[319]. In that article, D1 portrayed China as the enemy of the world:

“Before the Sino-US trade war broke out two years ago, the world had been disgusted with the totalitarian Chinese Communist Party, which had not become the target of the world. When the world learned that it was the new Cold War behind the Sino-US trade war. It was the confrontation between the core values of the free world camp led by the US and the ideology of the Chinese Communist Party. It is only now that the people of the world have come to realise with a shock that, oh! yes, if the Chinese Communist Party continue to impose their authoritarian values on us with their commercial power, in eight or ten years later, when China becomes the world’s largest economy, the freedom and the order of the free world of ours will be seriously undermined! The world began to see the Chinese Communist Party as the target of public criticism only after being alarmed by that.

…

… XI Jinping came up in the image of a strong man to reign and promoted the “three matters of confidence”, namely “confident in our path, confident in our theory, and confident in our system”. This “confidence” triggered him to use commercial power to spread the authoritarian values of the Chinese Communist Party to the world, in an attempt to alter the core values and the order of the free world, and to dominate the world, and to achieve his ambition to regain the status of the center of the world for China. This ambition of his was the reason that had made the Chinese Communist Party the target of the world, that had launched a new Cold War, that also had led the Chinese Communist Party down to poverty again, even to its collapse, and nonetheless to the downfall of XI Jinping. The recent fierce Sino-US trade war and the diving economy have hinted this.

…

… Our society and markets operate smoothly and effectively because all participants share and uphold the same values and guidelines. Today, the social and market systems of the free world are all based on the values of Western civilisation. XI Jinping’s attempts to use China’s commercial power to impose authoritarian and dictatorial values on the free world, to change its civilisation system, to undermine its effective operation, and then to go against the world’s ethics and lifestyles disgust the world. This is why the Chinese Communist Party is regarded as the common target.”

「就是兩年前中美未爆發貿戰之前，世人對極權專制的中共是厭惡，卻還未到眾矢之的之地步。當世人了解到，激發起中美貿易戰背後原來是新的冷戰，這意味到以美國為首的自由世界陣營的核心價值與中共意識形態的對峙，世人才驚覺，噢！是的，若中共繼續利用商業力量，將他們的獨裁專橫價值觀強加於我們，十年八載後，當中國成為世界最大的經濟體系，我們自由世界的自由和秩序不是會被嚴重破壞嗎！驚覺如此，世人才開始視中共為眾矢之的。

…

… 習近平以強人姿態君臨天下，推動「三個自信」即「道路自信、理論自信、制度自信」。這個「自信」觸發他利用商業力量，將中共獨裁價值觀普及世界，企圖改變自由世界核心價值和秩序，雄霸世界，回復中國成為世界中樞的野心。他這個野心是使中共成為世人眾矢之的，啟動了新冷戰，以及最後導致中共走回一窮二白，甚至崩潰，最少習近平倒台的原因。看到今日中美貿易戰劇鬥，中國經濟急劇下滑，似乎這現象已露端倪。

… 我們的社會和市場得以順利有效運作，是因為所有參與者都分享和奉行同樣的價值觀和指引。今日自由世界的社會和市場體系，都是建基於西方文明價值觀。習近平要利用中國的商業力量，將獨裁專橫的價值觀強加於自由世界，改變其文明體系，破壞其有效運作，繼而破壞世人的倫理和生活習慣，令世人反感，因此視中共為眾矢之的…」

371.  To put the aforesaid article of D1 in context, it is noteworthy that on the same day, Apple Daily gave prominent coverage to a news report with the title: 「天下制裁集會 今勢逼爆遮打」 (“Universal Sanction Rally, Chater Garden to be crammed”)[320]. The report said:

“the civil society rally team call on Hong Kong people to rally again to show the public opinion to the international community, hoping that the governments in the international community will implement sanctions against Hong Kong officials and police officers who have persecuted Hong Kong people”.

“The theme of the rally is to urge the government to carry out democratic political reform immediately, or else sanctions will be imposed by various governments. The Civil Assembly team is collaborating with the mutual destruction team. In addition to Hong Kong, events are being held today in 12 countries and 22 cities around the world, including the US, Canada, Europe and Australia. Supporting events will be held in more than 30 cities throughout the week.”

In the aforesaid report, Apple Daily quoted the speech of the organizers including:

(1)  Lau Wing-hong who mentioned that it was the first time for the Commissioner of Police TANG Ping-keung to issue a notice against the march since he took office: 

“It is obvious that the purpose is to scare the public so that they will be afraid to come out. The government fears that there will be a display of huge public opinion, which will lead to universal siege. Our best response is to carry on with the rally and show it to the police with a large number of people that the more you oppose (us), the more we will oppose your opposition. So the date is set. See you in Central on 19 January.”

(2)  Wong Chi-fung, who made the following appeal to the public:

“But actually the number of participants of today’s rally is quite crucial. The Congress of the United States is preparing to impose sanctions on Hong Kong officials. UK’s Members of Parliament from all parties have issued a statement on taking actions against the humane atrocities committed by the bad policemen. So, when the international front is in active preparation, Hong Kong people should come out more proactively.”

372.  There was a map illustrating the route of the “water-flow” rally. It also reported the following direction by Lau Wing-hong to those who were minded to participate in the “water-flow” rally:

“LAU said the rally would be held in the way of water-flow and the entire Chater Road would be covered by the Notice of No Objection, with a capacity of about 30,000 to 50,000 people. Participants can enter from the west side to the east side, first jam-packing the Chater Garden and then the Chater Road. When the venue is filled up, the organisers will call on some of the people to leave from the east side to make way for later arrivers.”

Covid-19 pandemic and the resistance movement

373.  In late January 2020, the Covid-19 pandemic began to affect Hong Kong and other places in the world and the matter was covered by Apple Daily. According to Chan Pui-man, D1 was of the view that the Chinese Government had concealed things and he expressed similar views in lunchbox meetings. D1’s view influenced the angle of reporting of Apple Daily. The social movement was then turned against the “totalitarian” Chinese Communist Party. In this regard, Chan Pui-man referred to the following:

(1)  D1’s article published on 26 January 2020 titled: 「捍道德抗極權 全球人人有責」(“Defending morality and Resisting Totalitarianism is the responsibility of everyone in the World”[321]), where he concluded by saying[322]:

“This example has clearly been reflected that the Chinese Communist Party is the target for scorn of the people in the United States, the people in Taiwan’s recent election against the “red tide” invasion led to the DPP’s victory and the ongoing anti-authoritarianism movement in Hong Kong against the totalitarian Chinese Communist Party. All of these are phenomena caused by Emperor Xi’s descending the world in a headstrong manner. It is a crucial moment for the Chinese people to stand up and say ‘No!’ ”.

(「…這例子已清楚呈現在美國民間視中共為眾矢之的、最近台灣大選人民對抗「紅潮」入侵令民進黨的大勝，以及香港仍在進行的逆權運動向中共極權的對抗。這所有都是習帝君臨天下強人作風造成的現象，是時候中國人站起來說「不！」的關頭了。」)

(2)  D1’s article titled 「武漢瘟疫 中共喪鐘」(“The plague of Wuhan, the death knell of the CPC”)[323] published on 9 February 2020 in which he wrote[324]:

“Look at the stiff face of Carrie LAM which clearly shows her scorn and her mind of being the enemy of Hong Kong people. Is it because she is narrow-minded and vicious and (therefore) wants to take revenge on the people’s resistance in the anti-ELAB movement(?)  Or is it because the totalitarian demon of the CPC is seriously ill? As what Jackie CHAN (said) in his curse, “The Chinese have to be disciplined!”  If (people) are not disciplined, (they) will rebel. Then the people of Hong Kong who resisted have become her enemies. I can see both here. The well-being of the Hong Kong people is not her concern. (What she cares) is to guess the holy will of Emperor XI. Control is the totem of totalitarianism. She was top of the class, and of course she knows what to do — to clean up Hong Kong by confronting the public opinion while strong-arm tactics are what she really focuses on, otherwise how come everything runs counter to the public opinion! While the virus is widespread and the heat is on, she connived at the influx of mainland patients or carriers to Hong Kong.

The medical and nursing staff were exhausted and the medical system was on the verge of collapse, but (she) did not give a damn about it. It’s not until the medical sector went on strike to save Hong Kong out of anger when the medical and nursing staff really couldn’t hold it any longer and harm had been done to the people of Hong Kong during the rampant epidemic that Carrie LAM just closed a few ports perfunctorily like squeezing a toothpaste tube, leaving major ports, such as Shenzhen Bay and the airport still open for mainland patients or carriers to pass through with no obstruction. (She did this) having no regard for the lives of Hong Kong people for the sake of not offending the mainlanders and for saving

Emperor XI’s face, which makes her a good steward with “full recognition of her courage and commitment” from Emperor XI. It’s not until the virus took the lives of Hong Kong people and she was shocked (she had) to be held accountable that she unwillingly implemented the “mandatory” quarantine, implementing a lenient 14-day quarantine on mainlanders who entered Hong Kong. Just take that the mainlanders who have flocked to Hong Kong are truly self-disciplined and would obediently stay in quarantine themselves, it may be too late however. With the previous influx of patients or carriers, how many Hong Kong people have been infected and hence in the incubation period and whether the plague will finally break out? It’s still unknown. At least, the protest of the medical and nursing staff has forced Carrie LAM to take actions.

This government of Carrie Lam has made herself our enemy. Not only can we not rely on it, but we have to be on guard against it in every aspect. That’s the reason why the Anti-ELAB Movement is still going on endlessly. The relationship between the people of Hong Kong and the government is a long-term resistance movement. We must be fully alert and stand together. Seeing that the government is ignoring our interests or suppressing us, we (have to) rise up against (it) like the medical and nursing staff. Under a haze of totalitarian(ism), the government has become the embodiment of totalitarianism. Hongkongers save our (all) Hong Kong by ourselves.” 

(「看林鄭僵硬的面孔，相由心生，那不屑形諸於色，以港人為敵心態明顯不過。是她心胸狹窄惡毒，要報市民反送中抗爭之仇，還是中共的極權魔障病入膏肓，正如成龍「中國人是要管的！」咒語，不管就造反，抗爭的香港市民成了她的敵人。我看兩者都有。香港人的福祉不是她的考量，揣摩習帝聖意，控制就是極權的圖騰。她是個考第一的學生，當然知點做，就是以對抗民意來收拾香港，強硬手段才是她的專注，否則怎會事事與民意背道而馳！肺炎泛濫風頭火勢，她卻縱容大陸患者或帶菌者洶湧襲港，令醫護人員疲於奔命，醫療系統瀕臨崩潰，也闊佬懶理。到醫護人員實在撐不住了，害到的是肺炎肆虐下的香港人，醫療界憤而起來罷工救港，她只擠牙膏式敷衍封了些關口，還保留深圳灣、機場等主要口岸讓大陸患者或帶菌者通行無阻，罔顧港人死活，為的是不想得罪大陸人，留面子給習帝好看，做到習帝「充分肯定，勇氣和擔當」的好管家。直到肺炎奪去了港人性命，她才驚覺孭鑊，死死氣「強制」檢疫，實行寬鬆的內地人入境隔離14天。就當湧港內地人真的自律，乖乖自我隔離。不過一切可能已經太遲了，還有之前湧入的患者或帶菌者，感染了多少仍在潛伏期間的香港人，是否最後會爆發瘟疫，仍是未知數，最少醫護人員的抗爭迫使林鄭有所行動。

林鄭這個政府與我們為敵，不但不可以依靠還要處處提防，就是為甚麼逆權運動仍無休止地在進行。港人與政府的關係是場長期抗爭的運動，我們必須打醒精神團結一致，看到政府罔顧我們利益或壓制我們，我們就像醫護人員一樣群起反抗。在極權陰霾籠罩下，政府成了極權的化身，香港人自己香港自己救。」)

Chan Pui-man said D1 had mentioned the aforesaid views in lunchbox meetings and that also affected the publication of Apple Daily.

(3)  D1’s article titled 「專橫暴政打壓 我們氣魄不滅」 (“Despotic tyranny suppresses, Our spirit is immortal”)[325] published on 26 April 2020, in relation to: (1) the remarks by some quarters of the society that the Hong Kong and Macao Affairs Office and the Liaison Office of the Central People’s Government were not “departments under the Central People’s Government” in the general sense as referred to in Article 22 of the Basic Law; and (2) the news that Dennis Kwok was to be disqualified as a LegCo member, he wrote :

“ Right, this time the CPC is not intimidating but really means it. (They) mean it, and so what? We will still grasp the nettle. In order to safeguard the rule of law and protect ourselves, for us there is no retreat because (if) there is no rule of law, Hong Kong, being a trade and financial centre, is toast for sure. From where can (we) earn a living? Without freedom, living is nothing more than (living) like a dead person. What's the point in living then? Back then, the Shanghainese who were stupid thought that nothing was· going to happen and there's no need to go away. In the end, (they) fell into the hands of evil. Today we clearly know that something is going on. (When) the CPC comes, it will definitely (bring about) a massive purge to purge the disobedient people and a large-scale eradication to eradicate the rule of law and mechanisms left .over from the British colony which are to protect the freedom of Hong Kong people, and Hong Kong people will be turned into slaves at the mercy of Emperor Xi. Therefore, we will keep standing up and fighting until the end, in the hope that by taking advantage of (the situation) in which Emperor Xi is crisis-ridden both internally and externally, and that different countries, especially the United States, are blaming and partially sanctioning China after human casualties and economic collapse have been caused by the Wuhan virus epidemic, the CPC, as forced (by the situation), dares not act too flagrantly and will restrain (itself) from persecuting Hong Kong for the moment. What's more, it may even be possible that Hong Kong will become China's only more convenient communication channel with the outside after the pandemic, so that Hong Kong may be able to have a narrow escape.

…

…What keeps us going right now is our cherishment of the rule of law and our love of freedom. We have no illusions about the CPC’s despotic tyranny. What we can stick to, as Chan Pui-man said, is our courage to knowingly do the impossible. Hong Kongers, the only thing we have to fear is fear itself”.

(「 是的，今次中共不是靠嚇是來真的。來真的又怎樣，我們仍然會迎難而上，為了保護我們的法治和自己，我們已無退路，因為沒有了法治，香港作為貿易和財經中心必定玩完，生計何來？沒有了自由，活著不外是走肉行屍，活著還有甚麼意思？當年上海佬懵盛盛，以為無事唔使走，終於墮入魔掌中，今日我們明知有事，中共打到嚟必然大清算大清洗，清算不聽話的人，清洗英國殖民地遺留下來保護港人自由的法治和機制，把香港人變成任由習帝擺佈的奴才，因此我們會繼續起來抗爭到底，希望趁習帝內外危機四伏，和慘遭武漢肺炎瘟疫人命摧殘和經濟淪陷後，各國尤其美國向中國責難及局部制裁，迫使中共不敢太明目張膽，暫時克制對香港的迫害，而且，香港疫情後更可能變成中國唯一較方便對外交流的通道，讓香港逃過一劫也說不定。

…

… 當下讓我們堅持下去的是我們對法治的珍惜和對自由的熱愛。我們對中共的專橫暴政沒有幻想，我們可以堅持下去的, 正如陳沛敏說，是我們明知不可為而為的氣魄。香港人，我們唯一要害怕的就是恐懼。」)

As regards the above, Chan Pui-man said that at that time the Anti-authoritarian movement had died down a lot but there were still people who came out and talked about universal suffrage and the “Five Demands”, even though by then everyone knew that those things could not materialize. She said that she admired the persistence of those people.

(4) A column called “Ears on the other side of the Wall” published in the political gossip section of Apple Daily on 5 May 2020. That was a collective “derivative-creation” based on a full front-page advertisement published in Apple Daily the day before. D1 was one of the persons who took part in the collective derivative creation[326] and he said:

“Should the rule of law and freedom be torn down, I shall have nothing”

(5) D1’s article titled 「無賴在摧毀香港法治」 (“Scoundrels are destroying the rule of law in Hong Kong”)[327] published on 10 May 2020. Talking about the travel restriction imposed on him in a case of “criminal intimidation”, D1 wrote:

“Moreover, the case is so minor that it is impossible for me to abscond. It is extremely unreasonable for the prosecutor to impose such harsh bail conditions. This is clearly a charge that is not justified by common sense and law. There must be another reason. But what is the reason? There is no point to paint the lily. The plot of the CPC is very clear: to subjugate Hong Kong by destroying the rule of law in Hong Kong, and to turn us Hong Kong people into obedient lackeys who are at their disposal. If we Hong Kong people cannot accept to be lackeys, we should not be scared by the plot of the CPC. Let’s fight to protect our rule of law and freedom together, and let’s meet under the pot!”

（「… 況且，這案件之輕微，本人根本不可能僭逃，主控官如此苛刻的保釋條件極不合理。這顯然是常理法理都不合規格的指控。當然是另有原因了。這原因是甚麼？無謂畫蛇添足了。中共的陰謀很清楚，就是要摧毀香港的法治來收服香港，將我們香港人變成任由擺佈的聽話奴才。我們香港人若不能接受做奴才，就不要被中共的陰謀嚇窒，堅持抗爭保護我們法治和自由，讓我們齊上齊落，煲底相見！」）

It is noted that D1 applied to the Court of First Instance to lift his travel restriction. We will come to that in due course.

After the NSL

374.  According to Yeung Ching-kee, after the implementation of the NSL, D1 mentioned the NSL many times in his column. From Yeung Ching-kee’s perspective as an editor, he considered that some of D1’s captions were very good and they left a very deep impression on him, examples of which included “Time is a weapon” 「時間就是武器」) and “The great era is coming soon” （「大時代快將來臨」）. Yeung Ching-kee said that D1’s articles reflected his views and stance very truthfully and genuinely and they also mentioned the issue of sanctions. D1 considered that sanctions imposed by the United States and the Western countries on China and Hong Kong would not abate. This was because the change in the policy towards China by the US would not make a turnaround within a short period of time. The US sanctions would have an impact on China’s economy for a long time. Yeung Ching-kee considered D1’s views and stance to be the guidelines for Yeung Ching-kee’s own writings and selection of articles.  

375.  In “Time is a weapon” (「時間就是武器」)[328], which was published on 19 July 2020, D1 wrote:

“The National Security Law of the CCP shocks hard. The CCP believed that the pan-dems primaries would be a failure, so no serious action was taken in advance. When the election was over, it showed that people were fearless in coming out to cast their votes. And then (the CCP) said the primaries were likely to have violated the National Security Law. Do you still want to fight against this treacherous and immoral regime at all costs? …

…

The National Security Law has caused an unprecedented backlash from the governments around the world. In the end, the international sanctions on China will be more severe that those years ago on June 4^th. And it happens that China is encountering the most serious crisis economically, socially and diplomatically since the opening of China 40 years ago, …

…

… It seems that there will be no further drastic actions for the time being because Hong Kong as an international financial and trade centre is still important to the CCP. She does not want to scare away the businessmen and hopes to maintain the financial and trade status. More importantly, she wants the United States and other western countries to know that although National Security Law has been implemented, the purpose of its shock is to make the protests die down, the law is there but it will not be used, hoping that they will slow down the sanctions and other punitive measures instead of adding more troubles to Xi Jinping who is already in dire straits.

I don’t believe that businessmen will be reluctant to leave a place where the rule of law is gone or Hong Kong’s status as an international financial centre can still be retained. I don’t believe that the sanctions imposed by the United States and other Western countries on the CCP will slow down either. The relationship between the CCP and other western countries such as the US is over, which is irreversible for the time being. I don’t believe that at the end of the day, the CCP will stop making arrests or stop further suppression, but this will happen a year or two from now. It is hoped that by then Xi Jinping’s heyday is gone, the CCP is back on the right track of opening, and we will have a chance to take a breath.”

「中共國安法震懾得手，以為泛民初選必定撻Q，事前沒有大動作，選舉完了，看到有這許多人不畏恐嚇出來投票，卻說初選可能違反國安法。這種奸詐無道的政權，你還要跟她硬拼？… 現在我們最需要團結一致的力量，來衝破現實關頭的時刻，反正我們都不會放棄最終的目標，…

…

國安法掀起國際政府的反彈前所未有，最後國際對中國的制裁會比當年六四更有過之而無不及，而正好是中國經濟，社會和外交上，遇到經濟開放四十年以來最大危機。…

… 香港的國際金融貿易中心地位對中共還是重要的，她不想嚇跑那些做生意的人，希望保留原有的金融貿易地位。更重要的是要讓美國等西方國家看到，儘管有國安法，為的只是平息抗爭的震懾效果，卻是按法不動的，讓他們放緩制裁等懲罰措施，不要給水深火熱的習近平再添麻煩。

我不相信做生意的人，沒有了法治保障還會戀棧這地方，香港的國際金融中心地位還可以保留得住。我也不相信美國等西方國家對中共的制裁會放緩，中共與美國等西方國家的關係大勢已去，暫時是無法逆轉的。我更不相信中共對香港最後不會拉人封艇，進一步打壓，但這會是一兩年後的事了，希望到時習近平大勢已去，中共回歸開放的正軌，我們便有喘氣的機會。」

376.  In “The great era is coming soon” (「大時代快將來臨」)[329], which was published on 23 September 2020, D1 wrote:

“The extent of damage to the economy caused by Western sanctions will definitely be great and far-reaching. What is imminent is the blow to investor’s confidence. The wolf warrior diplomacy against the U.S. sanctions, the so-called “hot war” vividly described, and even threats to increase the production of nuclear weapons to pick a fight against the Americans. But these noises have died down now. The state leaders have softened their tone and stance. Although there is not any sign of war, investors have been scared away. As long as the Sino-U.S. tensions have not been resolved, foreign investors dare not invest. When domestic enterprises only have superficial knowledge of the international situations, they are even more afraid of a real war with the Americans. Who would invest at this point of time?

…

Of course, all these could just be false alarm. It will take a few years before we know the result. The deterioration of the Sino-U.S. relation is not going to be resolved in a matter of 8, 10 years. In the meantime, the stagnation of investment of Chinese enterprises will be a latent cause of concern. Obviously, the economic and political losses brought about by the confrontation between the Chinese Communist Party and the United States are so big that have created challenges to the legitimacy of the Chinese Communist Party's regime. If the economy is not to be saved, the Chinese Communist Party will be not able to save her regime. The confrontation with the United States have caused physical and confidence traumatisation which in turn foreshadows looming disasters for the Chinese Communist Party.

…

Xi’s government is facing an open world. In the last few decades, the Chinese have known more about the world when they do business with foreign companies and travel around the world for cultural and academic exchange. They are no longer as ignorant as were the people in the old Mao’s time. Today, of course, you have every right to be Chairman Mao 2.0, but it will be a great challenge for you to do it. If you succeed, it will be a huge disaster for China. I think, we will know very soon if the people are willing to bear the consequences of this catastrophe. The great era is coming soon.”

（「西方國家的制裁帶來的經濟損害一定非常大，且後果較深遠。迫在眼前的，是投資者信心受到的打擊。以戰狼外交對抗美國制裁，繪形繪聲的所謂「熱戰」，甚至有將軍揚言要增加生產核武同美國佬死過。可是這些噪聲現今停下來了，國家領導人的聲線都柔和客氣了；打仗雖然十劃未有一撇，卻已嚇跑了投資者。中美關係一日未明朗，外國投資者都不敢投資。國內企業對國際形勢一知半解，就更怕真的跟美國佬打起來。誰會揀這時候作投資？

…

當然，這可能只是虛驚一場，但那要幾年後才知結果。中美關係惡化，是十年八載解決不了的問題，期間中國企業投資停滯，將是個大隱憂。很明顯，中共與美國對抗造成的經濟和政治損失，實在來得太大，甚至大到觸發成為對中共政權認受性的挑戰。保不住經濟，中共將保不住政權。與美國對抗造成的實質和信心創傷，預示中共將大禍臨頭。

…

習朝廷面對的是個開明的世界。這幾十年來，中國人對外貿易、四出旅遊作文化學術交流，對世界有了認識，再不像老毛時代那般無知。今日你當然有權做毛主席第二，是否做得來，將是你的極大考鹼。若是做得成，那將給中國帶來極大的災難。我想，很快我們便會知道人民是否願意承受這場大災難的後果。大時代快將要來臨。」）

377.  In cross-examination, it was put to Yeung Ching-kee that he would not approve a particular article, if in his opinion it was calling for something unlawful. Yeung Ching-kee answered that he would not give his approval if it would obviously violate the law. However, if the articles were “playing edge ball”, were consistent with the stance of Apple Daily and would avoid breaching the law, then perhaps they would be adopted. In re-examination, Yeung Ching-kee agreed that he was operating in a grey area and he hoped to avoid legal risks.

Chapter 13 – D1’s tweets

Introduction

378.  On 22 May 2020[330], D1 posted his first tweet. That tweet, which set the tone of all his subsequent tweets, read as follows:

“China clampdowns on HK’s rule of law and freedom by a new National Security Act is now good time to start a Twitter a/c. to show the world CCP's disrespect of law and the fact that CCP is not to be trusted.”

379.  It is noted, however, that the prosecution case is such that the contents of D1’s tweets are not the subject matters of Count 1 and Count 2, as they were posted in D1’s personal Twitter account and not on any of Apple Daily’s platforms. That said, the tweets, if written by D1 personally or posted with his agreement, would still be relevant as a backdrop to ascertain his state of mind at the material time.

Simon Lee

380.  According to Chan Pui-man, Simon Lee (Lee Chao Fu) used to be a writer for the Finance News section of Apple Daily using the pen name “Lee Sai Man” (「利世民」) and he had ceased working for Apple Daily for a period of time. Subsequently, D1 wanted to hold some video talks under the name of Apple Daily, the main purpose of which was to boost reader loyalty, especially as there was then an intention to set up a subscription system for the Apple Daily app. In around 2020, D1 asked to get Simon Lee back to help on that. Therefore, Simon Lee was once again recruited by the company. Later on, when D1 set up a Twitter account of his own, he engaged Simon Lee to manage the account for him.

381.  On 14 May 2020, D1 texted Simon Lee and asked for a chat about using Twitter. That, D1 said, was because “Mark” had asked him to open a Twitter account to attract American subscribers to the upcoming English version of Apple Daily of which the preparation was underway.[331]

Dinner gathering at D1’s residence

382.  According to Yeung Ching-kee, he attended a total of three dinner gatherings at D1’s home, namely:

•  6 May 2020 (“the 1^st Dinner”)

•  20 May 2020[332] (“the 2^nd Dinner”); and

•  23 June 2020[333] (“the 3^rd Dinner”).

As can be seen shortly, Yeung Ching-kee’s evidence that there were the above dinner gatherings at D1’s residence with the attendance of D1, Yeung Ching-kee, Simon Lee and others is circumstantially supported by D1’s WhatsApp records which talked about the arrangement of those dinners. What is in dispute is what was said during those gatherings and in particular, whether D1 mentioned anything about foreign sanctions.

383.  Yeung Ching-kee said that during the gatherings, D1 talked about: (a) the setting up of an online English version of Apple Daily; (b) the setting up of D1’s personal Twitter account; and (c) foreign sanctions. For the present purpose, we will focus on Yeung Ching-kee’s evidence on (b) and (c): 

(1)  Regarding the 1^st dinner, several columnists were also invited[334] including Lee Chao-fu Simon (with pen name “Lee Sai-man” (「利世民」)), “Lo Fung”[335] (i.e., Fung Wai-kong) and “Sang Pu” (「桑普」). During the meal, D1 said, among other things, that he wanted to set up a Twitter account and he asked the people present to provide news or commentaries for him to post, as he wanted to make use of the social media to increase his own influence as well as the influence of Apple Daily. D1 did not mention specifically then what type of news he had in mind. D1 said that Hong Kong’s human rights were suppressed. If more international attention was obtained, then that would hinder the Hong Kong and Chinese Governments. One way of hindering which was most frequently mentioned was sanction.

(2)  Regarding the 2^nd Dinner, Yeung Ching-kee was sure that “Lo Fung” and “Sang Pu” also attended[336] ;

(3)  Regarding the 3^rd Dinner, “Lo Fung”, “Sang Pu” and Simon Lee were present[337]. At the time, they talked about the NSL which was about to be promulgated. A concern was expressed as to whether D1 would be arrested. D1 then said that he did not fear that and said if he was arrested, this could further prove that the CCP and Hong Kong Government had suppressed the human rights and press freedom. D1 believed that the United States, the United Kingdom and Europe would not do nothing about it and only then would sanction measures be imposed. D1 opined that this could help improve the human rights situation in Hong Kong.

384.  In cross-examination, it was suggested to Yeung Ching-kee that D1 had not in fact used the word “sanction” during the 3^rd Dinner. Yeung Ching-kee said that he was sure that D1 did mention it. He agreed, however, that this part of his evidence was based solely on his recollection.

The content contributors

385.  D1’s WhatsApp records show that between 14 May and 21 May 2020 he and Simon Lee discussed the contents and translation of D1’s tweets. On 22 May 2020, D1 left a voice message to Simon Lee asking that the latter and three others (namely “Lo Fung”, “Sang Pu” and “On Yue (Keung Kwok-yuen)” (「安裕 (姜國元)」[338]) give him a tweet a day[339]. On 24 May 2020, Simon Lee reported that “Li Ping” (Yeung Ching-kee) had also contributed a tweet[340].

386.  Between 22 May 2020 and 18 June 2020, D1 and Simon Lee discussed contents of the tweets to be posted on D1’s Twitter account. From time to time, D1 provided his own drafts for Simon Lee’s editing and posting[341]. Simon Lee also reported to D1 that there were some suggested tweets from “Li Ping”[342] and the others[343].

387.  In Yeung Ching-kee’s examination-in-chief, he said that D1 promised him a monthly sum of $10,000 for contributing to D1’s tweets[344]. The payment was to come from D1’s personal account. Yeung Ching-kee said that the purpose of the tweets was to increase D1’s own influence as well as that of Apple Daily on the public opinion. Yeung Ching-kee said that he, as a full-time employee of Apple Daily, would still comply with D1’s order and do the job regardless of whether there would be any extra payment. Yeung Ching-kee said that he indeed contributed to D1’s tweets, examples of which included two pieces of news about the June 4 incident which Yeung Ching-kee gave to Simon Lee who then posted them on Twitter[345]. On 5 June 2020, D1 texted Yeung Ching-kee [346] and asked what the movement was which triggered the starting of democracy in South Korea. That led to Yeung Ching-kee feeding information to D1 of the Gwangju Movement.

388.  Besides, according to Chan Pui-man, D1 also asked her for news items or ideas to “feed” his tweets. For example, on 22 May 2020, there was an audio message from D1 telling Chan Pui-man that his Twitter was making a stir. He asked if she could send him a tweet everyday of her idea about the daily news.[347]  On the following day, Chan Pui-man sent D1 a news photo (showing Henry Tang and other Hong Kong members of the National Committee of the CPPCC) with the caption: “The Hong Kong NPC and the CPPCC issued statements supporting the establishment of the National Security Law in Hong Kong - RTHK”[348]. That was followed by Chan Pui-man’s question asking: “Will they be on the list?”  D1 asked Chan Pui-man what she meant. Chan Pui-man replied, “Hong Kong traitor, sanction list?” To this, D1 responded, “I see. Good suggest.”[349] Chan Pui-man explained that as D1 would like them to help looking for some hot topics for him to write on Twitter, she therefore conducted a search for him on the Internet. Eventually, the photo and Chan Pui-man’s question were adopted by D1 in his tweet on 23 May 2020 where it was asked “Should US government put them on the sanction list? #MagnitskyAct” [350].

389.  On 8 June 2020, however, D1 told Mark Simon that probably some of his content providers would drop out in a couple of months[351]. After that, on 11 June 2020, D1 told Simon Lee that since “Lo Fung” worked full time then for “English News”, he might not have time to contribute to his Twitter[352]. On 24 June 2020, D1 and Simon Lee discussed whether they still needed contributors for Twitter, as English News was already there where Simon Lee could find enough materials. D1 decided that the contributors’ contribution would be needed for one more month[353]. Eventually, on 8 July 2020 (which was after the promulgation of the NSL), D1 messaged Mark Simon[354]:

“Mark,

Just remind you that we’ve to ou (sic) my Twitter contibutors (sic) each HK$10k and Simon Lee 20k. When Simon transfer to you his duty we should pay him up to date for the second month. And the other contributors ask him how to handle for the second month. After that I don’t think we need them. Thanks. Jimmy”

390.  As regards Yeung Ching-kee, he said in his evidence that he stopped providing content for D1’s tweets after the latter’s arrest in August 2020. This was because previously he passed the information onto D1 through Simon Lee and at that time the latter had ceased to work for the newspaper.

391.  Even though D1 had engaged the assistance of other people for provision of content, by a comparison of the WhatsApp exchanges between D1 and Simon Lee and the tweets that were posted in D1’s Twitter account, it can be seen that between 21 June and 30 June, D1 was a major contributor to the tweets and Simon Lee made stylistic/editorial changes to them:

•  21 June 2020[355]

•  24 June 2020[356]

•  25 June 2020[357]

•  26 June 2020[358]

•  27 June 2020[359]

•  28 June 2020[360]

•  29 June 2020[361]

•  30 June 2020[362]

Samples of the tweets before the NSL

392.  Before the promulgation of the NSL, there were tweets calling for sanctions and opposing the introduction of the NSL. The following serve as examples:  

(1)  On 24 May 2020, there was a tweet about the “1HKer1Letter 2SaveHK” campaign[363];

(2)  On 27 May 2020, concerning the warning of sanction by the US against Hong Kong and mainland officials, D1 tweeted[364]:

“Mr. President @realDonaldTrump. You’re a man of his words. You said if China passes the national security act there will serious consequences.”

“The most effective sanction you can impose is is (sic) to freeze Chinese officials’ bank accounts in US. Expose how corrupted they are. Your action will be much appreciated not only by #HKers, but also the Chinese who suppressed by #CCP and every soul aspired to be free.”

(3)  On 11 June 2020, D1 sent to Simon Lee by WhatsApp a photo of the front-page news of Apple Daily[365] and also the following message[366]:

“CCP seems to have watered down the National Security Law. Don’t be fooled. It just cools down the fury of sanctions so they lose momentum and can’t be reinstated later when CCP pushes it hard on us again. CCP fears sanction is good reason to impose more harder sanctions.”

On the same day, the following tweet appeared in D1’s personal Twitter’s account[367]:

“#CCP seems to have watered down the National Security Law. Don’t be fooled. It just cools down the fury of sanctions so they lose momentum and can’t be reinstated 1ater when CCP pushes it on us again. CCP fears sanction and it is a good reason to impose even harder sanctions.”

That tweet came with the aforesaid photograph which D1 sent to Simon Lee.

(4)  Also 11 June 2020, D1 passed the following comments to Simon Lee[368]:

“New police unit to enforce national security law replaces rule of law by police force of expediency thus a police state of violence and corruption. What’s legal accords to police expediency.”

On the same day, the following was posted in D1’s personal Twitter account[369]:

“The new police unit to enforce national security law replaces rule of law by police force of expediency, thus turning HK into a police state of violence and corruption.”

(5)  On 18 June 2020, Simon Lee suggested to D1 that given the Standing Committee’s moving forward with the NSL, he thought D1 could then openly say they were inviting more severe sanctions, including the revocation of the Hong Kong special status[370]. D1 said, “Good. And as HK will be dead revoke or not makes no difference now.”[371]  D1 referred to the news about Pompeo’s meeting with Foreign Minister Yang Jiechi in Hawaii[372] and he suggested to Simon Lee[373]:

“Simon,

Can we use the summery on Twitter with a comment? Thanks. Jimmy

‘And so we are now going to work diplomatically to convince the Chinese Communist Party to reverse course, and in the likely event that they don’t choose that we’re going to respond in the way the President laid out to impose real cost for this decision where just the basic freedom, the freedom to live your life, to speak and assemble and all the things we take for granted, are being denied to the people of Hong Kong in violation of the very commitment that they made to those very same people. ’

Thank you Mr. Secretary for your strong support.”

To the above, Simon Lee replied, “Done”[374]. On the same day, the following tweet (linked to the news report concerned) appeared in D1’s personal Twitter account[375]:

“Thank you @SecPompeo and @readlDonaldTrump for committing to “impose real cost” onto #CCP that reneges promises (sic) and violates the basic freedoms of #HKers.” 

(6)  On 25 June 2020, Simon Lee forwarded to D1 the news about the Trump administration alleging that Huawei, Hikvision were backed by Chinese military[376]. Simon Lee asked, “Prelude to sanction?”  D1 replied, “Yes, indeed. Trump uses sanction as his campaign strategy. Thanks. Jimmy”[377] On the same date, the following was posted in D1’s Twitter account[378]:

“Is this prelude to further sanctions? What if financial institutions are not allowed to do business with these military controlled enterprises? China Mobile (941) a HK listed co is also mentioned in the document. How big the shockwave will it be?”

(7)  On 28 June 2020, D1 sent the following message to Simon Lee[379]:

“Sam,

Great job! This HK Bill is urgently needed to boost the morale of HKers resistance movement.”

The message came up a link to a report in Apple Daily which read:

“Lobbyists propose to issue green cards to Hongkongers fleeing political prosecution”

On the same day, there was a post in D1’s Twitter account which read,

“@hkdc_us Sam, Great job! This Bill is what #HK urgently needed to boost the morale of the resistance movement.” [380]

1 July 2020

393.  On 1 July 2020, which was the date immediately after the promulgation of the NSL, D1 sent to Simon Lee various pieces of news including:

•  “New office helping Hong Kong protesters fleeing to Taiwan all ready to open https://s.nextmedia.com/realtime/a.php?i=20200701&s=11064573&a=61116786”[381]; and

•  Protester who stormed Legco last year vows to continue on the frontline https://s.nextmedia.com/realtime/a.php?i=20200701&s=11064573&a=61116695[382].

There were also the following messages from D1 to Simon Lee:

“This office is urgently needed now!

Thank you! President Tsai.”[383]

“Despite the draconian National Security Law the spirit of resistance of our young protesters is not dimmed.”[384]

D1 told Simon Lee that some of the aforesaid news items were already in the English edition section and he asked Simon Lee to find and use them[385].

394.  On the same day, the following tweets (which were linked to the news report concerned in Apple Daily) appeared in D1’s Twitter account:

•  “This office is urgently needed thank you President @iingwen”[386]

•  “Despite the draconian National Security law, the spirit of resistance amongst our young protesters is not dimmed. Protester who stormed Legco last year vows to continue on the frontline”[387]

Simon Lee leaving Hong Kong

395.  It was also on 1 July 2020 that Simon Lee expressed his intention to cease managing D1’s tweets and cease contributing articles to Apple Daily[388]. He informed D1 also that he would be leaving on 8 July[389]. D1 replied that he had just read the details of National Security Law and found that they were very draconian. He agreed that Simon Lee should stay low profile[390].  

396.  Yeung Ching-kee’s evidence provide further insight as to why Simon Lee wanted to cease working for D1. According to Yeung Ching-kee, D1 had once revealed in an online interview that Simon Lee was helping him with his Twitter account. Simon Lee told Yeung Ching-kee subsequently that perhaps the tweets might have violated some aspects of the NSL and if D1 made it public that Simon Lee was the one who was responsible for it, then there would be a risk. Simon Lee said that he was not comfortable with it and therefore he resigned.

397.  On 3 July 2020, D1 texted Simon Lee and said[391]:

“Simon,

I didn’t have the opportunity to spell it out during the conversation with Sai-leung yesterday. I have decided to give account of the below-mentioned matter at LEE Pat-fong. Please review it to see if any changes are needed.

Upon seeing LEE Chao-fu retiring from writing, I feel shameful to ask him to further handle my Tweets though I am the one to have provided him with the posts. I do not want to get him implicated him in undeserved misfortunes.

What’s your thought on this? Thanks. LAI”

Simon Lee agreed to that course and D1 said he would do it that way.[392]

398.  On 6 July 2020, D1 forwarded to Simon Lee the following with a link to Apple Daily[393]:

“[LEE Pat-fong Online] LEE Sai-man retired from writing

Fatty LAI: ashamed to ask him to handle Twitter matters again https://s.nextmedia.com/realtime/a.php?i=20200703&s=6996647&a=61124937”

Despite the aforesaid announcement to the readers that Simon Lee was leaving, D1 suggested that he continued to manage D1’s tweets on a confidential basis[394]:

“Simon,

Maybe you can continue to manage my Twitter if we can keep it confidential. Thanks. Jimmy”

As to this, Lee Simon said “Thanks”[395].

399.  On the following day, i.e., 9 July 2020, D1 texted Mark Simon regarding Simon Lee again[396]:

“Mark,

Simon goes back to US today. If he can continue to handle Twitter for me confidentially let him. He reads Chinese is a convenience for me. Thanks. Jimmy”

Mark Simon replied[397],

“I have spoken extensively with him and discussed it on how we handle it. (It’s reason I have not taken it). I think he enjoys doing it he’s just worried about the impact on his other clients as well as family have NSL concerns.

Should be able to address. And agree the Chinese is very helpful. (I will still drop the others).”

Tweets after the NSL

400.  By a comparison of the WhatsApp messages between D1 and Simon Lee and the tweets posted in D1’s personal Twitter account after the promulgation of the NSL, it could be shown that after 1 July 2020 D1 was the major content contributor of the tweets posted in his personal Twitter account. The pattern was that D1 would provide Simon Lee with drafts for the latter’s editing and uploading. On occasions where Simon Lee came up with some suggestions, D1’s agreement would first be obtained before posting[398]. There were also some retweets from Apple Daily[399] and other sources[400]. This pattern continued after Simon Lee’s departure from Hong Kong for the US on about 9 July 2020 until shortly before D1’s arrest in early August 2020: 

•  2 July 2020[401]

•  3 July 2020[402]

•  4 July 2020[403]

•  5 July 2020[404]

•  6 July 2020[405]

•  7 July 2020[406]

•  8 July 2020[407]

•  9 July 2020[408]

•  10 July 2020[409]

•  12 July 2020[410]

•  13 July 2020[411]

•  14 July 2020[412]

•  15 July 2020[413]

•  17 July 2020[414]

•  21 July 2020[415]

•  22 July 2020[416]

•  23 July 2020[417]

•  24 July 2020[418]

•  26 July 2020[419]

•  28 July 2020[420]

•  29 July 2020[421]

•  30 July 2020[422]

•  2 August 2020[423]

•  3 August 2020[424]

•  4 August 2020[425]

•  6 August 2020[426]

•  7 August 2020[427]

•  8 August 2020[428]

D1’s strategy for the NSL

401.  It was plain that D1 was fully alive to the attendant legal risks after the NSL if he continued to advocate for sanctions as he did before:

(a)  According to Chan Pui-man, on 21 May 2020 she forwarded to D1 a report of HK01 on the upcoming NSL[429]. Besides, from about May to 1 July, there were news in Hong Kong about the NSL and the steps taken by the NPC and NPCSC to enact that law. The news were also covered by Apple Daily.

(b)   On 1 July 2020, D1 texted Cheung Kim-hung and said that he was shocked by what he read about the NSL. D1 said that “First, we need to figure out a good strategy to deal with it, and we should not be reckless.”[430]

(c)   When Simon Lee suggested the following tweet to D1 on 15 July 2020: [431]

“//The Liaison Office should have bank accounts in HK. Sanctions may begin with banks dealing with the Liaison office.//”

D1 responded by saying[432]:

“Advocating sanction may be too dangerous as they treat it as subversion or collusion. Maybe we can use other comments. Thanks. Jimmy”

402.  The following is illustrative of D1’s strategy: 

(1)  On 21 July 2020, Simon Lee forwarded to D1 the news about the UK suspending Hong Kong extradition and made the following comments:

“Civilized societies can't trust CCP. Therefore #HKers resisted the Extradition law in 2019. Then the world severed extradition arrangements with HK when #1C2S is declared dead”[433].

D1 replied, “Good Thanks.” On the same day, the following was posted in D1’s personal Twitter account[434]:

“The civilized world cannot trust #CCP. Last year #HKers resisted the #ExtraditionLaw. #NationSecurityLaw ended #1C2S and so the world is ending their extradition arrangments with #HongKong”

The aforesaid tweet was linked to a thread from “@ipacglobal” which was about the UK “suspending its extradition treaty with Hong Kong” and “SNP MP@AlynSmith pressed for further action, with Magnisky sanctions to be used against perpetrators of abuses in Xinjiang”. However, it is noted that there is no evidence as to from where Simon Lee got that thread and whether that thread had been shown to D1 before.

(2)  On 22 July 2020, D1 passed to Simon Lee his comments on the Chinese Government’s response to the UK’s suspending of extradition arrangement with Hong Kong[435]:

“Does CCP understand that its rule is being dreaded by foreigners because of its virulent violation of human right that extradition to China is like descending to hell?”

On the same day, the following tweet appeared in D1’s personal Twitter account[436]:

“Does #CCP understand that #NSL is dreaded because of the regime's record of virulent violation of human right? Extradition to China is like descending to hell.”

(3)  Also on 22 July 2020, D1 forwarded to Simon Lee the link to a news report in Apple Daily: “Firms with Hong Kong ties face US sanctions, linked to human rights abuses in Xinjiang”. D1 gave the following comments[437]:

“This is one of the most effective way to prevent human right violation by making those who does it personally accountable.”

On the following day, there was the following tweet posted in D1’s personal Twitter account[438]:

“The most effective way to prevent human rights violations is to hold people who do the heinous act personally accountable.”

Linked to the above was the news from Apple Daily.

(4)  On 24 July 2020, as per the request of D1[439], Simon Lee extensively covered in D1’s Twitter account Pompeo’s biased and inciteful speech at Nixon Library[440] which called for countries to align with US and take action against China, the gist of which has already been given above.

(5)  On 7 August 2020, D1 forwarded to Simon Lee the link to an article in Apple Daily titled, “Hong Kong is the trampled grass when elephants fight: Noam Chomsky”, of which D1 made the following comments in his message to Simon Lee:[441]

“Mr. Chomsky, with due respect, I think this fight is good and necessary because US is fighting for our freedom, and don’t mind to be the grass trampled by the elephants. Freedom is worth everything!”

On the same day, the following was posted in D1’s personal Twitter account (which was linked to the article of Noam Chomsky in Apple Daily): [442]

“Freedom is worth everything! Mr. Chomsky, with due respect, the US is fighting for our freedom, everyone's freedom, and it doesn’t mind to be the grass trampled by the elephants. It is a just and necessary fight.”

(6)  Also on 7 August 2020, Simon Lee forwarded a link to D1 which was about the US Department of Treasury imposing sanctions against 11 officials of the PRC and HKSAR[443]. D1 was told that included in the list were Carrie Lam, Chris Tang, Stephen Lo, John Lee Ka-chiu, Teresa Cheng, Erick Tsang, Xia Baolong, Zhang Xiaoming, Luo Huining, Zheng Yanxiong, and Eric Chan[444]. Simon Lee informed D1 that he had not tweeted the aforesaid and suggested that they could “just tweet the news and the excerpt”[445]. D1 replied, “That’s great! Thanks.”[446] As a result, the news of the sanction and the list were posted in D1’s personal Twitter account as follows:

“the Department of the Treasury imposed sanctions on 11 individuals for undermining Hong Kong's autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong.” [447]

“Individuals on the list include Carrie Lam, Chris Tang, Stephen Lo, John Lee Ka-chiu, Teresa Cheng, Erick Tsang, Xia Baolong, Zhang Xiaoming, Luo Huining, Zheng Yanxiong, and Eric Chan.”[448]

(7)  On 8 August 2020, D1 forwarded to Simon Lee a link to a report in Apple Daily about the sanction: “US drops sanctions bomb on Hong Kong’s Carrie Lam, top cop and 9 others” and also commented as follows[449]:

“But how about those election PRO (「主任」)? Should they be personally responsible for DQ candidates for political reasons?”

On the same day, the aforesaid news report of Apple Daily was retweeted in D1’s personal Twitter account. There was also another tweet (which was linked to the aforesaid news report) asking[450]:

“How about those election officers (「選舉主任」) who disqualified #DQ the candidate nominations? Should they be personally responsible for making the decisions?”

Chapter 14 – “Live Chat with Jimmy Lai”

Introduction

403.  On 9 July 2020, with the assistance of Simon Lee, D1 started his live chat programme on Twitter. Its name at first was “Live Q & A with Jimmy Lai” which was changed to “Live Chat with Jimmy Lai” (“live chat”) on 3 September 2020. From the second episode onwards, Mark Clifford joined in as a co-host and there would also be a guest speaker. The programme continued until D1 was arrested in early December 2020.

404.  Each of the episodes was hosted by D1 (who spoke in English) and he was assisted by Lucia who received questions from the audience. According to Cheung Kim-hung, Lucia[451] worked in an animation company belonging to D1 in Taiwan and Cheung Kim-hung understood that Mark Simon also took part in the management of that company. Mark Simon had told D1 that Lucia was very well versed with social media. Therefore, D1 instructed Cheung Kim-hung to liaise with Lucia as a result of which Lucia eventually came to work in Taiwan Apple Daily.

The purpose of the live chat

405.  Cheung Kim-hung’s attention was drawn to the message from Nick Cheung in the English News chat group on 30 June 2020[452] where he said:

“Boss, Mr Cheung (and) all. The Twitter live that boss plans to do is for interacting with foreign readers to engage in the international front. I suggest to follow the plan below …

It may start from 9 or 16 July [Thursday], depending on whether the Boss is OK.”

To which, Cheung Kim-hung replied,

“Shall (we) start the day after tomorrow? The draconian law is just coming into effect.”

Cheung Kim-hung explained that the “draconian law” was a reference to the NSL. Cheung Kim-hung gave the background of the aforesaid message as follows. “Twitter Live”, (later renamed as live chat) was a programme initiated by D1. Around that time, D1 was very concerned about the impact of the NSL on Hong Kong, as well as on Apple Daily. There was a discussion between D1 and Cheung Kim-hung. Cheung Kim-hung was wondering whether D1 would like to start the programme there and then. D1 was of the view that the live chat was very useful for discussion to be held with influential foreigners concerning the current situation of Hong Kong. 

406.  Cheung Kim-hung understood that D1 hoped to influence public opinion through the live chat with influential scholars, politicians as well as former government officials of foreign countries. During the course of the live chat, he would talk about the current situation of Hong Kong, in particular the repression of Hong Kong after the enactment of the NSL, the impact on the rule of law and the status of Hong Kong as a financial centre. It was hoped that foreign countries would offer assistance to Hong Kong.

The involvement of Apple Daily

407.  The first episode of live chat was live-streamed on 9 July 2020[453] in which D1’s speech was live streamed, followed by a Q & A session. After a few episodes, guests were invited to attend. They were arranged by Mark Simon and D1, and Apple Daily was not involved in the arrangement.

408.  According to Cheung Kim-hung, he personally did not play any part in the live chat. However, Apple Daily provided technical support of its setup and shooting. The first three episodes were only posted on Apple Daily’s Twitter account, and thereafter it was also posted on D1’s Twitter account. Apart from D1’s personal Twitter account, the programme was published by Apple Daily on its Twitter account, its Facebook and its PSCP.TV platform as well as YouTube. In particular, it was broadcast live on the platform of the English News and push notifications would be sent to readers. At the same time, there was also live streaming at the Twitter accounts of Apple Daily and D1. Nick Cheung was responsible for the production of live chat. According to Chan Pui-man, there would be promotion for live chat in the Print Form in the form of a full page advertisement[454].

409.  When an episode of live chat was being live-streamed or was uploaded online, Nick Cheung would send a link to members of the “English News” chat group about that.[455] The following are examples:

•  9 July 2020[456]

•  23 July 2020[457] (with Mark Clifford, Raymond Burghardt; Carl Goldstein and Jill Baker)

•  30 July 2020[458] (with Mark Clifford and Raymond Burghardt)

•  13 August 2020[459] (with Mark Clifford and Mike Gonzalez)

•  27 August 2020[460] (with Mark Clifford and Victoria Tin-bor Hui)

•  10 September 2020[461] (with Mark Clifford and Benedict Rogers)

•  15 October 2020[462] (with Mark CIifford and Paul Wolfowitz)

•  13 November 2020[463] (with Mark CIifford and Chris Patten)

•  20 November 2020[464] (with Mark CIifford and Natan Sharansky）

•  26 November 2020[465] (with Mark Clifford and Jack Keane)

410.  On 13 August 2020, Nick Cheung reported in the chat group “English News” that “the highest number of concurrent viewers on fb live was 2 thousand something, the accumulated number of views on fb live is 57,000 for the time being. The highest number of concurrent viewers on twitter live was almost 1 thousand approximately, the accumulated number of views on twitter live is 12,000 for the time being. These figures are the highest since the program started to broadcast!”[466]

411.  In cross-examination, Cheung Kim-hung disagreed with counsel that D1 had never spoken to him about the guests to be invited to attend live chat. He disagreed with counsel that the conversation between D1 and him about Jack Keane had never happened.

D1’s stance and extracts from the episodes

412.  A common theme which permeated all of the episodes of D1’s live chat was his anti-China and anti-NSL stance. In his view, the values of Hong Kong were the Western values which Hong Kong had inherited from the UK since its colonial days. The values of the CCP were the antithesis of those Western values which represented the “universal values”. Therefore, he saw the CCP as evil in nature and it was an enemy to Hong Kong people, Western countries and the world peace. D1 reiterated time and again that since China was so big and “belligerent”, the Western countries had to be aligned under the leadership of the US to confront China before it was too late. D1 called for foreign countries to continue to support Hong Kong, as the protest movement of Hong Kong were in fact part of the Western war of value against China.

413.  The following extracts of D1’s statements made in the live chat illustrate his aforesaid stance.

Episode 1 (9 July 2020)[467]

414.  When D1 was asked what the NSL meant for Hong Kong, he said:

“5. Well, definitely, this means the death…death knell of Hong Kong definitely, because this National Security Law supersedes our basic law. Therefore our rule of law and our freedom, of course, you know, because, you know, without the rule of law there’s no freedom, there’s no protection for us, and people doing business here ….the only way they can get protection is to have the official, over, who have power over them to protect them that also means Hong Kong will have corruption like China, because the official…will not do it for free, they need protection fee, well, the protection fee is corruption……”[468].

“7. … I just hope that those who stay and hold on to it will be strong enough to become the backbone of the movement and the conscience of the society. This is the only hope we have, yes, the protest movement is going to be very difficult and we will have to see what the National Security Laws in fact is, after a while that protesters will have to have different strategy to protest. We can’t use the way that we protest in the past, that’s the new reality we have to face.”[469]

Episode 2 (17 July 2020)[470]

415.  D1 described the NSL as “a sword of Damocles”. He also said that the NSL took away the protection of the rule of law from the people and “Hong Kong will become China, created with corruption in the future”[471]. Referring to the recent primary election of the pan-democrats, D1 said that Hong Kong people were not afraid, but would change their tactics in their resistance and become “flexible”[472].

Episode 3 (30 July 2020)[473]

416.  During the programme (with Mark Clifford and Raymond Burghardt), D1 said,

“245. But one thing I learnt is that, in the European countries are coming to be aligned with the US direction is because they realise that being alone, they don’t have the leverage against China. You know …

… even Canada, all the, you know, European countries, they have to be aligned together with the US to have the leverage against China that being alone they would not have. …”[474]

“338. … Now they know that China not only hasn’t become like us but has become uglier and want to … impose their value on the international community which is the value of civilisation. … Xi Jinping is definitely somebody who is a strongman; his approach to the world is, is a –you know, is a war-wolf approach.”[475]

“340. … The only way for China to reconcile with the world is when Xi Jinping steps down and they can change the attitude and the behavior towards the free world,”[476]

Episode 4 (6 August 2020)[477]

417.  During the programme (with Mark Clifford and Raymond Burghardt), D1 referred to the postponement of the September LegCo election and the disqualification of four of the candidates of pan-democrats. He said that even those in the pro-government camp sensed that Hong Kong was definitely being demised by the NSL. He agreed with Burghardt’s description that Hong Kong was being “recolonized”.  

418.  D1 said that those European countries which used to be quite reluctant to join Trump administration in opposing China were slowly, slowly joining just because: (1) they recognized how the different CCP value could be confrontational and damaging to the whole world order; and (2) those countries would not have leverage against China unless they united together.

419.  D1 said that the NSL was in fact no law and it allowed the government to do anything they like. As such, professional and business people were quietly leaving Hong Kong.

Episode 5 (13 August 2020)[478]

420.  During the programme (with Mark Clifford and Mike Gonzalez[479]), D1 referred to his recent arrest and the response of the people who supported him. D1 said that they could not really confront the authorities face to face because they were just like an egg and the authorities were like a high wall. So, they had to be very flexible, innovative and patient, but persistent.   

421.  D1 said that, because of the differences in their values, if they did not change China, the world would not have peace and that people today were talking about the new Cold War, which was just a war of opposing values. D1 said that people wanted China to realize that without it being assimilated to the international Western value, there would not be peace in the international trade or politics or diplomacy.

Episode 6 (18 August 2020)[480]

422.  During the programme (with Mark Clifford and Perry Link[481]), D1 again referred to his recent experience of being detained in custody. He was not expecting bail. He said that at that time he reflected on whether he would still do the same thing and go the same way and the answer which almost immediately came to his mind was, “yes, I would because this is my character.”[482]

423.  D1 also said,

“36. ...it is true that China never invade any country but China is using its value, you know, its kind of arbitrary value, the dictatal (sic) value, to invade into the international handling of affairs …international way of conducting business…and that invasion is actually the same or even more horrible to the foreign countries than invasion of a small country, like Russia invade Ukraine…”[483]

“40. ...This is the biggest question the world has to face now, that, if we can’t change China, China, as so big, are going to change us.”[484]

“42. Are we ready or comfortable to be changed by China’s value of our way of life, of our way of belief, of our way of looking at ourself and the world? And this is what the world is facing as the crucial point and that’s, that’s why countries like Germany, you know, in Europe, Germany, Australia and, and, and, and, and, and Canada and all that, initially they did not join the Americans’ policy towards China. It was like A- American was fighting China alone within the two superpower, trade, whatever, but once they realise what China is and the inability to leverage against such a big China, they are slowly, slowly coming to align with US. It’s the reason why -- because they think only align together they have a leverage against China. Being alone, they cannot add 1everage against China and this is what makes now the West more re-aligned together which Trump was, you know, almost breaking apart. And I think, I think this is something that is a new phenomenon to me.”[485]

Episode 7 (27 August 2020)[486]

424.  During the programme (with Mark Clifford and Victoria Tin-bor Hui[487]), D1 referred to the arrest the day before of 16 people who, he said, “did not violate any law” and which “confirmed National Security Law definitely had destroyed our rule of law. Not just destroy the rule of law but also destroy facts and the right and wrongs.”[488]

425.  D1 also said,

“13. … Look at the conflict today, the CCP with the world. The fundamental difference is the difference of values. The CCP wants to assure its value in in its dealing to overwhelm the institution of the international community. And they don’t follow the rules because they don’t see the reason to follow the rules which they don’t have the same value to appreciate. … I think this is the reason why the world all of a sudden turned against China, realizing that China getting richer doesn’t look more like us, but more different than us.”[489]

Episode 8 (3 September 2020)[490]

426.  During the programme (with Mark Clifford and Raymond Burghardt[491]), D1 said the pivot had shifted to Asia and the upgrade of the status of Taiwan was the right leverage US was using against China[492]. He likened Taiwan to Berlin in that “if Taiwan falls, Asia-Pacific will fall”[493]. He opined that “the greater the military presence that US had on the Asia-Pacific, the lesser risk of a conflict with China”[494] and that “US has to position itself strongly in Asia”[495]. D1’s intention was similar to the confidential note he wrote to Antonio Chiang in January 2017 and his intention to use Taiwan as a leverage against China never abated. D1 further commented that “the free world feels the threat of China the partial decoupling from China commercially is going to happen”[496].

427.  In reply to a question put by Lucia, D1 said[497],

“338. … the recent arrest of the two democratic legislator shows that this place has totally has no rule of law, you know, no black-and-white, no right and wrong, just whatever they want to do they can just, just do it. …”

Episode 9 (10 September 2020)[498]

428.  During the programme (with Mark Clifford and Benedict Rogers), D1 said that the role of Benedict Rogers was a lot more important than before the NSL:

“47. … because now if we talk to, you know, the foreign officials, foreign government officials and all that, we are in danger of being charged with corrosion of foreign powers. So your voice just in support of us outside has become a lot more important. Please help us and do your job as much as possible. We really appreciate it.” [499]

“49. … We need, we need outside voice as much as possible because the international voice is our savior here. The more attention they pay to Hong Kong, the safer Hong Kong will become.”[500]

429.  D1 knew at the time that making the request was illegal, however he was still requesting measures as suggested by Benedict Rogers to continue.

430.  In reply to a question from the audience as to what the international community living in Hong Kong could do to help Hong Kong people, D1 said[501],

“62. Well, talk to your, your country, your countrymen. Talk to the people you know in your country to to voice out for us, to talk to the politician, to, you know, alert them to pay attention to what happened here. … And that is very important for the international voice in support to us. You know, this is our savior. The pressure by the international community to to be given to CCP, it’s very important.”

Episode 10 (17 September 2020)[502]

431.  During the programme (with Mark Clifford and Claudia Rosett[503]), D1 said

“5. … Because the way the CCP treat Hong Kong shows the true face of CCP and the future of the world would have to face the same fate if they don’t start to resist and coerce CCP to change, to assimilate into the value of the of the free world. Because being so big, you know, China being so big, the behavior of CCP imposing on everything they deal with the world definitely is going to create conflicts. The world will not have peace if now we don’t stand up and tell CCP that you’ll be great beneficial to the world and the world to you. The only condition is please consider to assimilate into our value and order. Because the world has only one order, which is the order as a result of the Western civilization. … This place used to be so free and loved by the international community, now has become a dynamite of danger. This is the fact, and this is what a dictator can do. …”[504]

“14. … You know, the EU countries were very reluctant to follow Americans policy of China because they want to do business, you know, and they need business. But the more they look at China’s behavior, the more they are they feel so uncomfortable. And they also realize that without align with the US, they cannot deal with China alone because they won’t have the leverage as a small country to deal with a big China. … ”[505]

432.  D1 compared the Covid-19 pandemic to the Pearl Harbour incident in World War II:

“19. … I think it’s a Pearl Harbor … in the value sense. … Europe is … a very complacent, political, politically complacent place. You know, European, they don’t care. They don’t care about politics, they don’t care about religion, you know, they even don’t care about a lot of things that’s happening around them. But now all of a sudden they wake up. It seems that morality is coming back to the life, value is coming back to politics. And all this is being brought back by CCP, by the pandemic. … Because if China is so different from us, China eventually will be the greatest danger to the world. And people realize that and they won’t. They don’t want that to happen. They all want China to change. But China cannot change and perceive to be changing unless Xi Jinping. War wolf attitude to the world is changed by his stepping down.”[506]

“22. Well, … I think the Pearl Harbor analogy is a very good, but it’s just a China’s Pearl Harbor to the world, not just to the not just to the US because I think with the pandemic happens when they clamp down to Hong Kong. When all this happened to Hong Kong, that Hong Kong become a focal point of the residents of the world, …”[507]

Episode 11 (24 September 2020)[508]

433.  During the programme (with Mark Clifford and Thomas Shattuck[509]), D1 said[510]:

“6. … I think all the other country has to come to the aid of Taiwan because they’re all facing the same enemy, being alone. They don’t have the leverage against CCP. You know they they have to to be aligned together in the same effort to keep America’s homage in in Asia, to keep America’s homage in Asia. Taiwan is a very good leverage. If Taiwan fail, the credibility of the US will fail. It will be like the Berlin in the Soviet Cold War time. So it’s very important to keep Taiwan for the US and for all the the free world countries to come to the, you know to to come to together and support this effort because Asia is going to be the biggest market for all these countries. Asia is going to be most dynamic political arena in the world just because China is there. You know, balancing the power of China is a goal of the free world countries, so that their alignment together is a very obvious fact that people come to realize. … ”

434.  As regards US technology embargo, D1 had the following to say[511]:

“30. … So this is what China is facing. You know the, you know the technology embargo from the US will lead to the technology embargo of all the Western countries because all the Western country needs the US technology to complement it. They they have no choice but to do that. Yeah. And that would be a fatal blow to the … Chinese economy and development. It’s not a simple thing. Just this embargo of technology could be a very fatal blow to China, you know, because their past, you know, technology development relying on a lot of US technology, not just not just their own. All they have to develop is just to put all this together, you know. Now if they don’t have all these parts to put together, they can do nothing, you know, because research, it’s not just the surface of it. Research has a history and that technical history is in the US, like Tom said that the free flow of information and all that tradition is very important for technology investment and the development. So I think this is going to be a Taiwan’s chance to become the technology hub of Asia and the demise of China’s technology business.”

435.  D1 reiterated the comparison between the Covid-19 pandemic and the Pearl Harbour incident[512]:

“33. … the pandemic was a Pearl Harbor to the world that really woke up the world to … the real face of of CCP. I think you know because it changes people’s mind … the same as Pearl Harbor change American’s mind. You know American was not supporting the war until the Pearl Harbor … But the pandemic turned them around and they all become very critical and even hostile. And that changes the politics. You know, I think that European politics are being changed by people’s resentment against CCP.”

Episode 12 (1 October 2020)[513]

436.  During the programme (with Mark Clifford and Michael Austin[514]), D1 reiterated his “Pearl Harbour” motif[515]. He portrayed the CCP as an enemy to the Western countries[516] and said:

“11. … I think that would … that would change the word, you know the leadership now, Trump is taking will definitely will also lead the west block to align together and ... to work together to create a new world, a new world is emerging just because of threat of CCP.”[517]

437.  D1 supported the US using Taiwan as a leverage and the technology embargo against China:

“32. … You know … what the U.S. is doing to Taiwan is the right thing because first the sanction of technology to China, which the European country will have to follow because you cannot do without the American’s technology in ... in ... in Europe, OK, they will have to follow the same policy of sanction to China in the technology if all the sanction against China’s technology, China will have a very difficult in the research of technology of their earn because they have to rely on all the other technology for any research of a single technology, you know, technology is not an island, it’s not an isolated research project.”[518]

“34. So if that would be the biggest impact in China and that will be the biggest beneficial result to Taiwan because Taiwan will inevitably become the technology hub of Asia, and I think that will change a lot, you know ... you know whether ... whether the U.S. will increase its military support to Taiwan, which is inevitable, which is ... you know, almost certain, so whether they will move some of the troop from Japan to station in Taiwan before they recognise the sovereign that. .. you know, this ... this . .. you know, Taiwan as a sovereign country, which I think is a bit too dangerous, but they can always move the troop to Taiwan without recognizing Taiwan as a sovereign country, you know, I mean all the change in Taiwan, between Taiwan and the U.S. will manifest the U.S. policy in Asia, a lot more than we can see from any other movements.”[519]

Episode 13 (8 October 2020)[520]

438.  During the programme (with Mark Clifford and Zen Ze-kiun[521]), D1 criticized the agreement between Vatican and the Mainland made two years ago as a “kowtow of Vatican”. As regards religious freedom in Hong Kong, D1 said[522]:

“60. Well, I I think the suppression of the Hong Kong Church, while no matter how hard the CCP pressure for it, it will, it will have to take the cooperation of the Church leaders to be suppressed. That means that Vatican would have to give support to the CCP for the church here to be cowed.”

Episode 14 (15 October 2020)[523]

439.  During the programme (with Mark Clifford and Paul Wolfowitz), D1 said,

“8. well. I’m I think the state of Taiwan now is more important strategically to the US than at that time of Korea and First, I think this is certain .. I think this is very true, you know because you know Asian is going to be the important for America and since you and strategically is more important at the politica1 arena than anyone, you know, Asia is going to be very important …”[524]

“10. Yeah um well if the US lose Taiwan. The US is to lose credibility of their allies in Asia as you said you know in the article earlier and I think this is this is very important. …”[525]

440.  Talking about the recent interception of the twelve Hong Kong people who were trying to flee to Taiwan but were intercepted by the Mainland authorities and detained, D1 said[526],

“76. … I think it’s important that for the world community to do whatever you can to voice out your support and give pressure to CCP to release them or to send them back to Hong Kong for legal procedures, you know I think this is this is the only way we can save those twelve youngsters. Is appeal to the you know to the international community for help and please help please do whatever you can as a citizen as a politician as a government, We need your help the twelve young kids really need your help.”

Episode 15 (22 October 2020)[527]

441.  During the programme (with Mark Clifford and Jillian Melchior[528]), D1 said[529]:

“43. … But I tell you, Trump’s way of dealing with China is the right approach and I hope this approach will be will be persisting. So I hope Donald Trump will be reelected. …”

Episode 16 (29 October 2020)[530]

442.  During the programme (with Mark Clifford and Father Robert Sirico[531]), D1 said:

“7. If Hong Kong doesn’t have the news, the world will forget us. And if the world forget us, CCP will do whatever they like to us, and the world is not going to know about it and let them voice for us because we need the support of the world. It’s just very important we find ways to let the world continue to pay attention to us without any news events.” [532]

“22. Yeah. Yeah. I think we have to persist. You know, what the Chinese is afraid of is not the small violence that we we did during the you know, the last movement. You know the kids they throw the the firebomb which is small thing for them violence is not something they that cannot overcome. What they were we’re afraid of is Hong Kong becomes a beacon of the Western ideas of democracy, freedom, freedom of speech. All this a very dangerous idea for the Chinese in China to assimilate and to assume that they have the same human dignity to assert this freedom. I think that’s what they are afraid of them. That’s why they … clamp us down so quickly and and … so dreadfully.”[533]

“32. … And I think, you know, at this stage it is important for me to stay and to voice out, continue to voice out, you know, if I’m picked to be focused on as a, as a quisling, you know, as somebody who is, is bad for the country, You know, the more I’m pinpoint, I think the more valuable I am. So the more pressure I have, the greater the voice I should have. So the … world will … pay notice.”[534]

Episode 17 (5 November 2020)[535]

443.  During the programme (with Mark Clifford and Claudia Rosett), D1 said[536]:

“5. … Without CCP changing their attitude to assimilate themselves into the world value system, the world will not have peace in a long term. …”

444.  Talking about the incoming Biden administration, D1 said:

“17. … I think … that’s the problem because … I’m almost sure that Biden and his team will try to reengage China because they don’t see the way that Trump was dealing with China was good for the world and for US, … the tendency of decoupling with China really scare a lot of business people … that the Biden administration will be … beholden to those people … But at the same time, people in general are against China because of the pandemic and because of the way that the pandemic have galvanized the problem of Hong Kong, because Hong Kong share the same value with the American people. That’s why seeing Hong Kong give them a real heartfelt resonance to what happened here. …”[537]

“35. … I think the saving grace is American people’s mind has changed against China. And I don’t think that administration or the politician can change much of it. …”[538]

“52. … You know, it’s, you know, it’s a permanent problem facing the world now because China is so big. If China is a small country, it doesn’t matter. China is going to be the biggest country, you know, going to be the the strongest country in the world. If we don’t pay attention now, it will be too late. It will be too late. But I’m, I’m, I’m very optimistic about the American people. I think American people will be great. They they will turn the whole thing around. You know, … I’m very optimistic about American people. You know in crisis the true color comes out.”[539]

445.  In reply to a question from the audience as to what the likely outcome of the trade war between US and China was and whether there was likely to be a reconciliation, D1 said[540]:

“61. well I I don’t think that’s going to be an easy reconciliation because it’s not about the business, it is about the fundamental values of two opposing camp. You know, the problem with CCP is their value, therefore their behavior are so different from the world in general that there will be always conflicts dealing in the world and being so big, they can really have a very dire consequences to the world peace. And that’s what worries us. It’s not about trade. The whole thing is not about trade. You know, fundamentals about values.”

Episode 18 (12 November 2020)[541]

446.  During the programme (with Mark Clifford and Raymond Burghardt), D1 referred to the recent disqualification of four legislators as “shocking” and described it as “the last nail on the Hong Kong coffin”.[542] He said, “So I hope the world will take notice and come to our aid and support us.”[543]  He said further:

“8. … Now we have to fight. Even if you know that fighting is useless, we, even you know that fighting will not bring us victory. … We have to show to the world that we are not giving up. … Now the problem with Hong Kong is the only saving grace we have is … the voice and support of the international community. ”[544]

447.  Talking about the arm sales of US to Taiwan, D1 said[545]:

“23. … If this, you know if they they they continue the arms sales even add a few more items to show that you know they know that to deal with CCP you have to deal it with strength not weaknesses, right. You know if you are cautious you show your weaknesses and they will bully you and this is very obvious. … I think you know … the trade deal with Taiwan they should proceed immediately to show that you know they are not afraid. … It’s very important for Asia to see how Taiwan is being treated by the US because of the ability views on how the US treat Taiwan in the face of the CCP threat. You know that’s the same story as Berlin at that time. If the US was not tough on on on Berlin, Berlin will have fallen fallen to the Russia and and Europe would have you know we have great problem to unite together on the side of the US. The same thing will happen to Asia, only that this time China is a lot stronger and more powerful than Russia at that time. So the the fortitude to deal with China needs a lot more political will than before.”

D1 went further and said[546]:

“32. … Another thing that you know I think the Biden administration can have Taiwan by enabling Japan with have a greater align with Taiwan you know because Japan is changing is is is it’s a constitutions and … I think that’s opportunity for Japan to have a closer alliance with Taiwan statistically and militarily.”

448.  As regards how the incoming US administration should deal with China, D1 said[547]:

“36. Well, … I hope the Biden administration realized that now is a change world that the world understand China a lot more than they do just a few years ago. You know, especially after the pandemic. You know if they’re using the Obama, old people in the administration and those guys are using the same vision they have all of the world of China, that will be disaster. You know, … I hope that you know facing a different world they will have the. They will have used, they will have to use different strategy and … I think this is very important, they have to be more aggressive. They have to take more risks because for the world to change we can’t just engaging China or containing China. We have to have a more aggressive way of changing restructuring that the the world system. You know, we know now with China sharing a very different values and attitude to the international feelings. The world cannot have ease but constant conflicts if we don’t change the way China deal with the world and that is fundamental. That needs some real restructuring of the strategy and the attitude we face. China or CCP.”

“40. I hope that the Biden administration is that not the third term of Obama administration. If it is, it will be disastrous because the Obama administration’s foreign policy has been disastrous.”[548]

449.  In reply to a question of a viewer as to whether it would be a good strategy for the pro-democracy movement to work with factions within the regime and whether it would be better to accept a “bad deal” than to have “no deal” at all, D1 disagreed with both propositions and he said they should keep on fighting[549]. He told another viewer[550]:

“57. … The outside world has to help us. Their voice they support is our saving grace. This is very clear. But to have the world respond to us we must fight …”

Episode 19 (13 November 2020)[551]

450.  During the programme (with Mark Clifford and Chris Patten), D1 referred to the disqualification of four LegCo members which triggered the resignation of all the pan-democrat legislators. He said that meant that the rule of law was gone[552].

451.  Besides, D1 said,

“13. Well, well, to expect China to behave well I think is an illusion because they see the world differently from us because they just can’t understand our value or they don’t have the sense of law, you know, law, legal system. … you know they they override the rule of law with the National security law now in every range you know they intimidate people and and in Hong Kong you definitely is is finished. … ” [553]

“18. … I think the world now aware that we have to confront China. If we can’t change them, they will change us because of the enormity of the power, economic power. If we don’t confront them now, we’ll be sorry. The world will not have peace and the world has to wake up to this.”[554]

“22. I think what the West should do is to emulate the CCP. Just embed our value and human right in everything we do with China. That is a precondition. Everything we do with China is embed with human right. If the human right is violated, we will not deal with them. You know they had they can’t be an island. They have to deal with the world. So we just learn from them to, you know, to assure the value and try to change them over time, you know, and that’s the only way.”[555]

452.  In reply to a question from a viewer as to what the United Nations (“UN”) could do to “help” Hong Kong, D1 said that he was not so optimistic about the UN. On the other hand, he said[556],

“39. … I think what’s important are the Western countries that you know, the Japan, you know the India, you know … those democratic countries. And I think they will come to the aid of our party just because they realize that if we fall that the values that they uphold will be damaged. So, you know, I think the world will come to help us either to voice out for us and in support of us. …”

D1 said[557],

“44. … You know we cannot back down. Once we back down, we will have to continue backing down and we are finished. You know, it’s a test. It’s a challenge. …”

Episode 20 (19 November 2020)[558]

453.  During the programme (with Mark Clifford and Glenn Harlan Reynolds[559]), D1 reiterated his view about China and what he wanted the Biden administration to do in dealing with China:

“38. Yeah, I think that’s important. You know, if the world doesn’t act now, the world is going to be sorry and we will not have peace. And I think that’s realizations is very clear in a lot of leaders mind and in people’s mind. And I think that’s a change, that’s a change world. You know, it’s interesting to see how the Biden’s administration is going to change, to face this new world instead of the world. …”[560]

“46. … So I think the probability is Biden will go along with Trump’s policy for some time and when he takes up his earn, it will be very similar to what Trump does, because all the Asian countries especially and also the European countries will voice out their way. You know, their their, their, their view about China. And that will also influence Biden.”[561]

454.  In reply to a question from a viewer as to what D1 would like Hongkongers to keep going in case he was arrested under the NSL, he said[562],

“51. Well, we have to keep going. We can’t have our hands down and say that, you know, it’s finished … That spirit is very important for us to carry on. If we carry it on, victory will be on us. Even if it’s not in our time, it will be the younger generations time.”

Episode 21 (20 November 2020)[563]

455.  During the programme (with Mark Clifford and Natan Sharansky), D1 said,

“47. ... Although I know that I will get into big trouble by talking to you, by talking to a lot of people, because this is a collusion with foreigner- this is big crime here- but I must hold on and uphold what we have been doing because so many people are looking up to me. If I back down, they will all back down.”[564]

“91. … If the US sanctioned the technology to China, the Western country will have to follow because a lot of the Western countries’ technology, you know, one part or another has to depend on, on the American technology. So, you know, this will be a big blow to the Chinese economy and the social control….”[565]

456.  D1 did not agree that the situation then existing in Hong Kong was similar to the Cultural Revolution on the Mainland,

“148. … It’s very unlike, you know, the scenario of the Cultural Revolution. Cultural Revolutions was the power struggle of Mao Tsetung to eliminate his enemies. Here, they -…Xi Jinping is not eliminating his enemy but eliminating the Hong Kong people. We are not his enemy.”[566]

“150. So, but he doesn’t want to hear opposition voice and that’s why he has to clamp us down and eliminate us…..”[567]

Episode 22 (26 November 2020)[568]

457.  During the programme (with Mark Clifford and Jack Keane), D1 said:

“8. Well, I, I I really agree with you general that because the people sentiment or resentment against China definitely will change the coming administration’s policy towards China because that Biden can no longer use the Obama way of vision and policy towards China or appeasing. But I also agree that I hope that the Biden administration understands also that. … ” [569]

“22. Yeah. What what President Trump has done is he walks the walk. I hope that that new administration not just talk the talk but also walks the walk. And that’s very important action, not rhetoric. It’s very important for us.”[570]

458.  In reply to a question from a viewer as to whether it was possible to run a media company which was truly unbiased and neutral, D1 said that he did not think that any media company was neutral. He said[571],

“40. … You have to take a stand. I think you know the Apple Daily Time one takes a stand of Pro Democracy, … pro free market.”

Episode 23 (29 November 2020)[572]

459.  During the programme (with Mark Clifford and Nicholas Kristof), D1 said,

“42. … because Hong Kong’s sharing the same value as the free, free world and, uh, we are beacon of this idea of the free world which is the very dangerous idea to China. You know, if allowed to spread to China, it definitely can dismember, you know, the Chinese regime … that’s why they, they treat me the way they treat us, so aggressively clamping down on us. You know, it, it’s all –you know, it’s very important for the world to know that we are actually fighting in the frontier with China with the values that represent the whole Western free world. If we fail here, that will be a defeat of the credibility of the Western world’s value system and that’s why the world has to pay attention to us and make sure that your voice in support will carry us to go on. And I hope that Biden’s administration, … I hope that they can walk the walk and, if preferable, linking Hong Kong’s rule of law and freedom and also the human right of Xinjiang in the talks with China when they have to renegotiate the trade deal which Biden – Biden definitely is going to renegotiate …”[573]

“56. … And also, being a rich businessman is very boring. The fight for democracy has made my life very meaningful …..the more I’m in danger , the more effective I can bring the world’s attention to Hong Kong and this is a role I treasure.”[574]

“60. … I think it’s also important for the Hong Kong people to listen to me just because, if I don’t back down, they feel encouraged. I cannot back down…..You know, we, we have to go on and some of the people who are the symbol of Hong Kong’s resistance have to persist and go on because people are looking up to us. If we back down, they will back down and we are finished.”[575]

“171. … that is the entire police force has grown to an extent that it becomes lawless. Therefore, uh, whoever they want to arrest…the judicial system will allow them to do so. … recently I heard about cases, masked rape case/s, so and so, all other cases, they are related to this culture, … a culture created by the feeling of lawlessness. … I think there has to be a change in the suppression on and governance of Hong Kong by the Chinese Communist Party. …”[576]

“173. … the police has very big power now, you know, because Hong Kong is almost a police state, you know. Whatever the police want to arrest somebody, the Judiciary will give the right to do so. That enlarged power has actually corrupt the police culture. You can see that, recently, you know, there’s, uh, rape cases or whatever and … many of the policemen are having offences that that was very rare … in the past. It’s just the sign of the corruption of the police culture. ...”[577]

Episode 24 (1 December 2020)[578]

460.  During the programme (with Mark Clifford and Dan Blumenthal), D1 said,

“28. … the world should be alert to it and I think the pressure to stop China from progressing its infiltration, asserting its values and behavior to change the rule of the international order, all that, it’s the –now is the critical time to stop China from, you know, from progressing in this trajectory because the world will not have peace. …”[579]

“74. (Blumenthal): …So, so China’s tyranny is a problem for all of us now and that’s part of the nightmare.

75. Right”[580]

“119. Yeah. The West’s pressure to China is very important because now is the best time to change China when they are in great crisis, especially, Xi Jinping is in great chi---in crisis, great crisis. If we don’t put the, put the pressure for China or, at least, for Xi Jinping to step down, we’ll be sorry. … If we let the CCP to get stronger economically and assert its value and behavior to the world, we won’t have peace and the West has to realise that now is the cr-, the critical time to put pressure on China, espe- especially, on CCP. At least, if CC---you know, Xi – if Xi Jinping steps down, there’s a way or, or opening for the CCP to really liberalize and assimilate to the world, and that’s the only hope the world, you know, can hope for.”[581]

“136. … if we really don’t have a miracle, I mean a miracle happens, if Xi Jinping, uh, continues to be, forever, Hong—the Chairman of China, we would be fucked up. … I even think that Hong Kong would not only become a city of the mainland, maybe, perhaps we would become Xinjiang in the future. … That’s why we say, if we really do not continue to protest , we do not continue to uphold Hong Kong’s legal system and freedom as far as possible, no matter what we do, we won’t end up becoming Hong Kong – not becoming a city of the mainland, but Xinjiang, or even much worse than Xinjiang.”[582]

“142. Uh, uh, you know, I, I, I think it’s almost irreversible that the Hong Kong position eventually will be—will, will deteriorate. My worry is …we will be like Xinjiang because the values we share are Western values as a beacon to spread this value to China. We would be more dangerous than the Muslim idea to China. So, naturally, they will treat us as very dangerous city, the same way that they treat Xinjiang, or even worse. … that’s what we worry about unless some miracle happen that Xi Jinping steps down a- and CCP will recognise that Hong Kong’s value is very important, that, you know, slowly, slowly, they allow Hong Kong to be back to its past. But this is almost like a dream ...”[583]

Worry of the staff of Apple Daily

461.  Cheung Kim-hung remembered that during a discussion he had with D1, D1 said to him that the guests in the episode on 26 November 2020 were very prominent including Jack Keane, who was a retired general of the United States and so was very influential. Cheung Kim-hung asked, “At a moment like this, would it be very sensitive, too sensitive to invite a person like this?”  D1 replied based on his intuition as a person who had been doing business as a businessman, “They mess with me in this way, I’m definitely giving it all my might. There’s no room for me to back down.”  Upon hearing that, Cheung Kim-hung did not express any further opinions of his own and he turned to discuss other matters with D1. D1 denied he had this conversation with Cheung Kim-hung.

462.  According to Chan Pui-man, when the contents of the NSL became known, it came as a shock to D1 as they were more detrimental than what he had thought. He said to her “(we) should think out a good strategy to deal with it, and (we) should not be reckless.” [584]  Chan Pui-man understood D1 to mean that they, especially editors, needed to change their actions and not to use certain phrases in order to avoid breaching the NSL. Chan Pui-man added that that was why she and some of her colleagues were surprised by D1’s live chat programme which rolled out after the enactment of the NSL. All the guests he invited to the programme were foreigners. Chan Pui-man understood that he was still harbouring the hope that international pressure, including sanctions, could be of use. Chan Pui-man and her colleagues were worried that the contents of D1’s live chat would have problems with the NSL. In fact, at that time some media outlets were paying attention to D1 and raised concern questions about his programme. Chan Pui-man went to talk to Cheung Kim-hung as to whether they should discuss the matter with D1. Cheung Kim-hung expressed their concern and worries to D1. Nevertheless, D1 persisted.

463.  Chan Pui-man said in cross-examination that after D1’s arrest in December 2020, however, Chan Pui-man and Cheung Kim-hung discussed the contents of D1’s articles and live chats. Legal advice was taken and concern was expressed about the contents of D1’s tweets and live chat. Actions were taken including taking down certain articles from D1’s Twitter account and live chat[585]. She agreed with leading counsel that after the promulgation of the NSL, Apple Daily took steps to avoid being in breach of that law.

Chapter 15 – “English News”

Introduction

464.  According to Wayland, in the Taipei meeting he had with D1 and Finn Lau, D1 talked about the need to unite different sectors including the legislature front, the international front, the street front and businessmen.

465.  It is the prosecution case that “English News” of Apple Daily, whose target readers were foreigners overseas and those in the US in particular, was used as a platform for international lobbying.

Reasons for “English News”

466.  According to Yeung Ching-kee, D1 first raised the setting up of an online English version of Apple Daily at the 1^st dinner gathering on 6 May 2020 which he and other columnists (including Simon Lee) attended. Yeung Ching-kee said that during the meal, D1 mentioned that he wanted to set up an English version online and he hoped that it could increase the influence of Apple Daily in the United States and tell the people there about the human rights situation in Hong Kong and the upcoming promulgation of NSL. D1 said that taking into account the situation then, not only the United States Government but the United States general public and citizens would be concerned about Hong Kong and he wanted those present at the meal to give some suggestions.

467.  Quite apart from Yeung Ching-kee’s evidence, it also happened that on 10 May 2020, Fung Hei-kin, a writer of Apple Daily, suggested in his article titled 「不撐蘋果的一百萬人」(“The one million people who don’t support Apple”)[586] that Apple Daily could work on the news in English. That was said in the context that the only English news media in Hong Kong then was the South China Morning Post which was considered to be pro-establishment. On the same day, D1 formed a WhatsApp chat group called “English news”[587]. D1 was the administrator and he added as members of the chat group Cheung Kim-hung, Chan Pui-man, Law Wai-kwong, Cheung Chi-wai (Nick), Chiang Mei-hung (associate editor-in-chief of cross-strait news), and Connie Chan (in charge of the IT). At a later stage, Fung Wai-kong was also added[588]. We will come to that shortly. The chat group remained operational until D1’s remand in December 2020. In the aforesaid chat group, D1 began by saying that “the proposal to launch an electronic version of English-translated news by Fung Hei-kin today is worth considering as translation (done) by translation websites nowadays is low-cost and fast”[589]. D1 went on to explain his expectation and goal of the English News and the approach to be adopted. He wanted to have the English News launched as soon as possible, saying that then was the right moment. D1 said that if foreign readers who supported Hong Kong would subscribe to the English News that would be a huge support for Apple Daily. D1 said that he hoped that the English News could reach the US readers so that they could become a “lever” between Apple Daily and the US politics.

468.  According to Cheung Kim-hung, it was D1’s hope that the US would take hostile actions to help Hong Kong and to protect Apple Daily[590]. Similarly, Chan Pui-man understood D1 to mean that if Apple Daily was being suppressed, the support from the US community would bring pressure on the government. Besides, the subscription by foreign leaders would also mean they supported both D1 and Apple Daily.

469.  In response to Nick Cheung’s comment on 12 May 2020 that “the purpose of us fighting (on) the international front this time is to wield the influence and power of discourse of Hong Kong ‘Apple’ in foreign countries”[591], D1 said: [592]

“Our main purpose is to (get) foreigners to support Apple Daily. In particular, (getting) American politicians to subscribe to Apple Daily is more important for our political asylum.”

When Chan Pui-man was asked about the aforesaid message of D1, she said that she understood, however, that fighting on international front was also the effect that D1 would like to achieve. In this regard, it is noted that on 31 May 2020 when Nick Cheung forwarded to D1 the link to the push message of the launch of “English News”[593], the push message bore the caption, “ “Build an international front” - Read the English edition of Apple Daily for free!”[594] .

470.  In a similar vein, it was Yeung Ching-kee’s evidence that at the 2^nd dinner gathering he attended at D1’s residence on 20 May 2020, D1 said that under the situation at that time both the United States Government and its people would be concerned about Hong Kong’s situation. D1 hoped that the English version could help them to know more about the situation in Hong Kong. He hoped also that the United States Government could adopt a stronger stance. If the Apple Daily English version could have more coverage about this, then the United States Government could take actions and sanction was mentioned most frequently. Yeung Ching-kee agreed with D1 and was of the view that if foreign sanctions could be imposed to make Hong Kong withdraw the bill or to delay the promulgation of the National Security Law, then the price paid by the Hong Kong society would be lower. Therefore, during the time of the anti-ELAB movement and the time before and after the NSL was promulgated, when D1 called for international sanctions, he supported D1’s views in the editorials as well as the articles in the forum page.

The stance of “English News”

471.  On 10 May 2020, D1 said in the chat group:[595]

“When we choose writers we don’t have to think about giving foreigners a balanced view of what happens here of every different colors, we only concentrate in our Apple Daily HK view, a general view of the the yellow side. In choosing further writes we need not choose Weijian Shan, who’s a friend of mine and a very popular writer about China in the west. But his view is all China on the positive side we don’t need. We are not trying to strike a balance but the point of view of the people on the side of protecting HK. This is the voice the world wants to know.”

472.  According to Cheung Kim-hung, D1 made it clear that they “don’t have to think about giving foreigners a balanced view of what happens here of every difficult colours”.[596] The views of writers for the English News should have a relatively “yellow” stance and should be aligned with those of Apple Daily.

Selection of articles for “English News”

473.  Subsequently, it was decided that “English News” would be published in Digital Form and that some news and articles from the Print Form (including D1’s column “Sink or Swim, Smile”) would be selected for translation and posted in “English News”[597].

474.  According to Cheung Kim-hung, as regards articles to be translated for inclusion in the English News, D1 asked that they should be about resistance, anti-Hong Kong Government and the CCP, sanctions and so forth[598]. D1 also mentioned that the Mainland news, features, articles and tidbits were what the US people needed to read the most given the anti-China sentiment that was aroused after the Covid-19 pandemic.[599] D1 sought to portray to foreign readers that the regime of the CCP was suppressing human rights, covering up the Covid-19 pandemic, not being transparent and lack of integrity. According to Cheung Kim-hung, the aforesaid view of D1 formed the editorial policy of the English News.

475.  D1 asked that Cheung Kim-hung and his colleagues put their mind on improving the quality first and then Mark Simon would go to the US to deal with promotion issues. On 10 May 2020, D1 wrote in the chat group:

“Mark,

Imaging if we can get Mike Pence to subscribe to Apple Daily app! The publicity and respect it command would arouse much support for us. I know it’s almost impossible to pull it off. But can try? Thanks. Jimmy”[600]

“When we have English version and have an American presence, we may attract more better writers to write for us. It’s time to rethink our network of writers.”[601]

Cheung Kim-hung understood that D1 had asked Mark Simon to invite some US officials, as well as prominent political figures, to subscribe to the English News[602]. D1 also said that Mark Simon would help to find columnists for the English News.

476.  On 11 May 2020, Cheung Kim-hung sent to the members of the “English News” chat group a summary of the results of the discussion. Among other things, it was decided that “English News” would be published in the Digital Form and that some news and articles (including D1’s column) from the Print Form would be selected for translation and publication in “English News”.[603] 

477.  On 13 May 2020, Chan Pui-man was not in office. D1 forward to her an audio-recording of his discussion with others about English News[604]. Then, D1 wrote in the chat group:[605]

“The more I think about it, the more I feel that the English edition should focus on Mainland news, features, articles and tidbits. The anti-China sentiment aroused by the pandemic is what Americans should read. It is particularly important for us to achieve the best quality in content about Mainland China. Those who subscribe to us will be knowledgeable people and have higher expectation on news than ordinary people. Our goal is to provide Chinese news that foreigners don’t see on South China Morning Post and break its monopoly in this respect. A total of 21 to 22 articles a day, including 11 to 12 Hong Kong news, features and commentaries, and 8 to 10 articles about Mainland China, plus films, comic strips and tidbits, will be enough.”

As to the above, Chan Pui-man responded by saying “Got it. Thanks.”[606] Chan Pui-man explained that she thought that D1 was giving instructions as to how to deal with “English News” in the future.                                 

478.  Based on D1’s editorial policy, on 13 May 2020 Law Wai-kwong set out the editorial direction concerning the contents of the English News.[607] Subsequently, it was also agreed between D1 and Cheung Kim-hung that the English News should also cover news about the tension across the Taiwan Strait.[608]  Cheung Kim-hung believed it was D1’s intention that the US people should pay more attention to the “coercion of China on Taiwan” and it was another attempt to cast an unfavourable light on China.

Mark Simon and Mark Clifford

479.  On 10 May 2020, D1 informed Mark Simon that they had a “very good idea”, i.e., “We’re stating an Apple Daily English Newsletter inside our app.”  D1 said that there would be tremendous financial and political support. It was something they had to do then especially as a political protection[609]. D1 even asked Mark Simon to try to get Mike Pence to subscribe[610]:

“Mark,

Imaging if we can get Mike Pence to subscribe to Apple Daily app! The publicity and respect it command would arouse much support for us. I know it’s almost impossible to pull it off. But can try? Thanks. Jimmy”

480.  On 12 May 2020, D1 enlisted the help of Mark Clifford and Mark Simon for identifying suitable English writers for the newsletter. D1’s message to Mark Simon was as follows[611]: 

Mark,

The English version of Apple Daily will made in a daily collection of News, Opinions, Features and interviews. It’ll be total of about 15 daily items with a weekly summery (sic). These items are mostly translation versions of our existing daily contents. We’re thinking of daily adding a couple of opinion pieces by English writers to supplement our English version. I heard that there’re some writers are fallen out of favor writing for SCMP, we may have them write for us, plus some reporters who live here can write for us. Please discuss this local English writers issue with Mark Clifford, you and he should know quite a few of them. And actually you and Mark can write a weekly column for the English newsletter. Please work on it and let me know. Thanks. Jimmy”

The same message was copied to Mark Clifford on the same day[612].

Benedict Rogers, Hack Hazlewood and Luke de Pulford

481.  On 31 May 2020, Nick Cheung reported in the chat group that both Benedict Rogers and Jack Hazlewood had helped to promote “English News”[613]. According to the WhatsApp records found in D1’s mobile, shortly after the aforesaid report by Nick Cheung, D1 texted Benedict Rogers and said[614]:

“Ben,

Thank you so much for promoting Apple English edition. For free world people to subscribe to it is not just financial help to us, which is important considering how much money we’re losing because of ad embargo, but what’s more important is their subscription is a political protection for us. More people in the West especially in America subscribe to it less likely CCP will clampdown on us with the incoming national security law. Thank you so much. Cheers. Jimmy”

482.  Besides, in that evening, Jack Hazlewood sent to D1 by WhatsApp some materials about an intended prosecution against certain expatriate police officers serving in Hong Kong. Hazlewood asked D1 if he had any thoughts about people who might have suffered torture whilst in custody. D1 told Hazlewood that he would forward the material[615]. He then forwarded his WhatsApp messages with Hazlewood to Law Wai-kwong. He told Law Wai-kwong:

“Wai-kwong, the above is by Jack Hazlewood. He said he’s been in touch with our reporter about this, and here’s further information. Please follow up. Thanks. Lai”[616].

483.  It is noteworthy that in D1’s examination-in-chief, when he was first asked by his counsel about Jack Hazlewood, he said that he had never come to know that person. Yet, apart from the aforesaid message to Law Wai-kwong, there was also D1’s WhatsApp message to Simon Lee on 31 May 2020 when D1 asked the latter to send the following thank-you message to Jack Hazlewood[617]:

“Mr. hazlewood,

Thank you so much for promoting Apple English edition. For free world people to subscribe to it is not just financial help to us, which is important considering how much money we’re losing because of ad embargo, but what’s more important is that their subscription is a political protection for us. More people in the West especially in America subscribe to it less likely will CCP clampdown on us with the incoming national security law. Thank you so much. Cheers.

Jimmy”

484.  On 1 June 2020, Nick Cheung informed the chat group that Luke de Pulford, “who is involved in disqualifying Ho Kwan-yiu’s degree” also helped with promoting “English News” on Twitter and expressed an interest in writing a column[618].

Fung Wai-kong joining

485.  By 25 May 2020 when “English News” was launched[619], Fung Wai-kong had yet to return to Apple Daily. As per D1’s request, in late May 2020 Cheung Kim-hung approached Fung Wai-kong and invited the latter to come back to the newspaper to take charge of the English News.

486.  On 4 June 2020, Yeung Ching-kee was told by Fung Wai-kong that the latter would come back to Apple Daily and deal with the English page[620]. There is no dispute that when Fung Wai-kong reported duty in early June 2020, he became the executive editor-in-chief of “English News”.

487.  According to Cheung Kim-hung, Fung Wai-kong was responsible for the operation of “English News” and also the selection and translation of the contents pursuant to the principle set down by D1. In terms of hierarchy, Fung Wai-kong would report to Law Wai-kwong; Law Wai-kwong would report to Nick Cheung; and the latter would report to Chan Pui-man. As a matter of fact, however, Fung Wai-kong would follow D1’s editorial policy and report directly to Cheung Kim-hung who in turn would report to D1.  

The launching of “English News”

488.  On 31 May 2020, Nick Cheung forwarded to D1 the link to the push message announcing the launch of “English News” on the following day.[621]  The push message bore the heading, “ “Build an international front” Read the English edition of Apple Daily for free!”[622].

489.  On 1 June 2020, the English News was formally set up within the Apple Daily website and the Apple Daily app and was made available to the public[623]. On the following day, there was a full front page advertisement of “English News” in Apple Daily.[624] On 3 June 2020, Nick Cheung reported to the WhatsApp chat group that “the promotional video of the English Edition of Apple Daily made by the Boss” was posted on Apple Daily’s Facebook, Twitter and Instagram.[625]  On 3 July 2020, Nick Cheung reported in the chat group that there were already 308,166 active readers of the English News.[626]

490.  There were four sections in the English version of Apple Daily, namely News, Columns, Interviews and Features. The Column section included translation of Apple Daily’s editorials, D1’s own column “Sink or Swim, Smile” and also some articles of Lee Yi and Ngan Shun-kau. According to Cheung Kim-hung, those articles were selected in accordance with D1’s editorial policy, i.e., there should be no positive news about China and only negative news.

What D1 wanted to do with “English News”

491.  According to Yeung Ching-kee, D1 was interested in publishing news about internal power struggle in the Mainland. After Fung Wai-kong (“Lo Fung”) had re-joined Apple Daily to be in charge of “English News”, on 12 June 2020, D1 texted Yeung Ching-kee and asked him to identify writers who were not only able to analyse or respond to those power struggles of China, but were also conversant with the inside stories[627]. Yeung Ching-kee understood that D1 wanted to increase the influence by disseminating information of the power struggle of the PRC or the authorities. Yeung Ching-kee informed D1[628] that he had asked Gao Yu (「高瑜」, a scholar in Beijing) and Changping (「長平」, former Chief Editor of Southern Metropolis Daily) to write instant comments for English News and he would discuss with “Lo Fung” for the actual arrangement. Yeung Ching-kee explained in Court that the message was about D1’s request of finding writers to write about the inside stories of China. In the end, however, the discussion with “Lo Fung” did not take place, as D1 turned down Yeung Ching-kee’s proposal to invite those writers, as D1 wanted someone who could write the inside story and the infighting between President Xi and Prime Minister Li[629].

492.  After the enactment of the NSL, Fung Wai-kong suggested to include in the Features soft articles such as travel and food. Cheung Kim-hung sought instruction from D1 on this. D1 said the purpose of the English News was to arouse attention of foreign countries and to manipulate the public opinion. If soft articles were included, then the effect would be diluted. Cheung Kim-hung conveyed D1’s instruction to Fung Wai-kong. Therefore, the articles in the Feature section of the English News were not the same as those found in the Supplement of Apple Daily. The major topics were those about the Hong Kong anti-authoritarianism movement and the crackdown on human rights by China.

493.  On 10 July 2020, a WhatsApp chat group called “Index” was created of which D1 was the administrator and the other members were Cheung Kim-hung and “Lo Fung” (Fung Wai-kong)[630]. According to Cheung Kim-hung, it was D1 who set up this chat group as he wanted to explore the feasibility of making use of big data to set up an index of wrong reports made by the official or media and then correct them with facts. In the chat group, D1 said the following as to what he wanted to do with big data:

“Kim Hung and Lo Fung,

To make it a Chinese news platform worldwide, we need more than the translated news or some written articles. News is very important. It’s what we’re, but news alone makes us ordinary. We’ve to build something monumental, some statistics to anchor people’s constant interest. If we build a few monumental indexes to reflect what China “looks” like at this moment. Thought about these indexes to add to our English Edition:

1, What they say is wrong about China. We can use big data to find this out. We can even outsource the big data process to outsider. Quoting whatever data in the media or academic is in variance with truth, whether negative or positive about China, we let data speak for itself. There’re a lot of exaggerated negative reports about China, that we can make right no doubt. We just have to act according to data, and express it objectively. This can be a index people want to know.

Another is: Big Event in All Walks of Life. Again use big data to find out what’s the big event in business, finance, social, and social scene (Person of that moment), in game, in culture, medical, schools etc., all walks of life’s big event big and personality of that moment. Just one event and one personality in one area, Mostly the person of the big event is also the person of that moment. That index reflects a face China appears at this moment. Think about them. We’ll discuss how to execute when we think it over. Cheers. Jimmy”[631]

“No, it’s not about exposing. It’s to find out wrong reports by the official or media through big data and then correct them with facts. It’s about comparing the truth found out by big data with exaggerated or even wrong reports (which can also be found out by big data). These reports can be analyzed through big data and reported in a corrected form. It’s just like an index, a graph that shows what’s right and what’s wrong.”[632]

“Kim Hung and Lo Fung,

There’s a very simple index I also want to set up in English Edition platform, that is What Chinese People Care! This is very easy and simple. All we’ve to do is to have Big Data tell us what’s the heated subjects people in China are searching online or talking in social media etc. Let’s work on it. Kim Hung please let me know your thought.

Thanks. Jimmy”[633]

494.  On 20 July 2020, Cheung Kim-hung reported to D1[634] that an arrangement would be made for collecting the data and compiling the index. Cheung Kim-hung also said that he and “Lo Fung” would follow up. D1 replied:

“Excellent Thanks.

“I think (the data) should be mainly about: Lives, livelihood, work, career, domestic trivia, household affairs, housing, social order (danger), health, sports, medical (needs), disease, sports, goods, prices of goods, entertainment, movies, events, travel, traffic, transport, restaurants, food and drinks, social affairs, government, politics, celebrities, stars, preferences, hopes, worries, love and hate, etc. But it’s right to ask Prof. KWAN to make a plan. Thanks. LAI”[635]

495.  Cheung Kim-hung said D1 kept a close eye on the English News. For example, on 8 August 2020 D1 expressed in the chat group that there were too few news items to attract readers. Fung Wai-kong then suggested adding news such as the US sanctions against Carrie Lam[636]. On 26 August 2020, D1 said in the chat group that the English News should focus on Chinese news rather than international news, as the latter would have been covered by major English media.[637]

496.  Cheung Kim-hung was shown and he identified four articles published in the English News:

•  “Who is afraid of CCP Sanctions and Oppressions” by Li Ping (Yeung Ching-kee) published on 14 July 2020[638];

•  “Will U.S. sanction Carrie Lam?” by Yi Jian Piao Chen published on 18 July 2020[639];

•  “Aversion to Beijing’s bellicose diplomacy is escalating in Europe” by Benedict Rogers published on 28 August 2020[640]; and

•  “Round up of all opposition politicians the HK version of Kaohsiung Incident” by Glacier Kwong, published on 14 January 2021[641].

Cheung Kim-hung said the aforesaid articles were selected in accordance with D1’s editorial policy to seek the attention of foreign countries with a view to asking them to take actions against “Chinese oppression in Hong Kong”. It was hoped that foreign countries could go so far as to impose sanctions against the CCP and Hong Kong officials.

497.  In cross-examination, Cheung Kim-hung disagreed with the proposition put to him that the point of negative reports in Apple Daily about the government was to promote better transparency and governance. Cheung Kim-hung said that the proposal of setting up indexes eventually did not proceed further and D1 was arrested and remanded in December 2020.

498.  Cheung Kim-hung agreed with leading counsel that D1 had expressed that it was important for them to achieve the best quality in content about Mainland China, to provide viewpoints on Chinese news that foreigners would not see on South China Morning Post, i.e., to provide a viewpoint which is alternative to that of the South China Morning Post; and to break South China Morning Post’s monopoly in this respect[642]. However, Cheung Kim-hung did not agree that therefore Apple Daily needed not provide a balanced view. Cheung Kim-hung said that even though D1 had said there were not enough news for the English News and asked for more news reports[643], still they had to be news reported in a negative light. At the same time, D1 disallowed an increase in the number of news articles on general news. Just like the example given earlier on, when Fung Wai-kong made a suggestion of adding more international news to the English News, D1 disagreed to that.

499.  Cheung Kim-hung insisted that the selection of articles for the English News had to be done within the framework set down by D1. As regards the article titled “Round-up of all opposition politicians the HK version of Kaohisung Incident”[644] written by Glacier Kwong and published on 14 January 2021, Cheung Kim-hung confirmed that Kwong was not a staff member of Apple Daily and that the view expressed was hers. As regards the penultimate paragraph saying that “The opinions of the writers do not necessarily reflect the opinions of the editorial board”, Cheung Kim-hung said that was just a standard sentence for avoiding the risk of a lawsuit. However, for the selection of articles, for instance, for the English News, that must be done within the framework set down by D1.

500.  As regards Chan Pui-man, her attention was drawn to a message from Cheung Kim-hung where he asked that the news about the scandals of Biden and his son which were reported in Taiwan Apple Daily be translated as soon as possible for publication in “English News”. She explained that at one stage D1 criticised the international news section of the newspaper in that it followed the New York Times and CNN too closely as they were critical of Donald Trump. Colleagues in the international news section felt the pressure, so that when they dealt with the news concerning Donald Trump and Biden, the weight they put in might be adjusted according to the request of D1. However, she considered that they still handled the news in accordance to the principles of news reporting.  

Chapter 16 – D1’s activities and conduct

Introduction

501.  Some of the incidents and matters mentioned below have been referred to as what the prosecution witnesses from Apple Daily said were illustrations of D1’s political stance or examples of him giving editorial directions. Nevertheless, in order to present a full picture of D1’s activities both before and after the promulgation of the NSL and for the sake of convenience, some repetitions would be necessary. It needs to be stressed that D1 is not on trial for his pre-NSL activities, as the NSL does not have retrospective effect: NSL 39. However, D1’s activities prior to the promulgation of the NSL serve as the background against which his post-NSL statements, conduct and intention are to be considered.  

502.  Matters concerning Andy, Wayland and SWHK would also be touched upon here but are dealt with in a separate chapter.

D1 and Taiwan

503.  Between 2017 and 2019, D1 was eager to see a strengthening of the US – Taiwan relationship as he saw Taiwan as a leverage against China. For that purpose, D1 first came up with the idea of having two of his close associates, Paul Wolfowitz and Jack Keane, who were retired senior US officials, to act as political consultants of Tsai Ing-wen, then leader of the Taiwan region. He achieved that through the intermediacy of Antonio Chiang, whom D1 described as the “right-hand man” of Tsai. Not only that, D1 also spent substantial amounts of money on both Wolfowitz and Keane for that purpose.

504.  Secondly, he shared with John Bolton, then an US think tank member about his note proposing the increase of US military presence in Taiwan. Shortly after that, John Bolton published an article which contained an idea similar to that of D1.

505.  Thirdly, in an attempt to facilitate the re-establishment of the diplomatic channel between the US and Taiwan, D1 recommended James Cunningham, whom he described as a “top-notch diplomat” to the Taiwan region through Antonio Chiang.

506.  Evidence of the above has already been summarized in the chapter under the heading of “D1’s political stance and its influence on Apple Daily” which we are not going to repeat.

D1’s request for Tsai Ing-wen’s statement on ELAB

507.  Between 17 and 27 April 2019, D1 requested Antonio Chiang to arrange a statement from Tsai Ing-wen condemning the ELAB. D1 said further that the demonstration was set on Sunday 28 April 2019 and he asked that Tsai’s statement come out before that. Antonio Chiang promised to help[645]. On 4 May 2019, D1 texted Antonio Chiang and said that the pan-democrats asked him to express their “heart-felt gratitude to your government yesterday’s anti-fugitive law statement”[646].

D1 seeking Chris Patten’s assistance

508.  We have already referred to the evidence about the Lam Wing-kee incident which took place a couple of days before the protest planned on 28 April 2019.

509.  We have also referred to the evidence of Cheung Kim-hung and Chan Pui-man that D1, with a view to further boost public’s support for the anti-ELAB protest on 28 April 2019, forwarded to them the comments on the extradition bill by the former Governor Chris Patten which he obtained with the help of Benedict Rogers.

510.  Furthermore, there were WhatsApp records showing that the comments of Chris Patten came as a result of D1’s solicitation. On 27 April 2019, there was a series of WhatsApp exchanges between D1 and Benedict Rogers. D1 told Benedict Rogers that there was going to be an anti-fugitive law demonstration and he wanted to push more people to join. D1 related to Benedict Rogers the request of the pan-democrats that Benedict Rogers interview the former Governor Chris Patten on their behalf on the anti-fugitive law so that the interview could be published in the media on the following day to push more people onto the street. It happened that Benedict Rogers was not in UK then but he promised to contact Chris Patten. In the event, Benedict Rogers reverted by saying that Chris Patten had agreed to send a comment rather than giving an interview.[647]  Subsequently, Benedict Rogers sent the comments which he said were from Chris Patten to D1[648] and to Chan Pui-man[649] respectively.

D1’s speech at FCC

511.  On 20 May 2019, D1 gave a speech at Foreign Correspondents’ Club about the ELAB. The event was covered by Apple Daily on 21 May 2019 where D1 was reported to have made a ferocious personal attack against the then Chief Executive[650]:

“(I) never regarded Carrie LAM as evil in the past. But now I can only say that Carrie LAM is extremely evil; (I) cannot think of other description.”

D1’s article in Wall Street Journal

512.  Based on D1’s WhatsApp record, on 9 June 2019, Mark Simon told him that “Paul” was suggesting that D1 do a piece for the Wall Street Journal (“WSJ”) or the New York Post as that would get wide play in the White House[651]. Then on 7 August 2019, D1 said that he had written “an oped as advised by Bill for publication after the Hoover talk”. He asked Mark Simon to have a look at it[652]. Mark Simon gave his comments on the same day to D1[653].

513.  The importance of this WSJ article of D1 is twofold:

(1)  it helps to understand D1’s thinking and his conduct: as can be seen in due course, D1’s views expressed in his WSJ article later became the consistent theme which permeated through his subsequent articles, tweets and live chat; and

(2)  the subsequent events tend to show that D1’s article had got the attention of the US administration.

514.  In that article, D1 opened by asking the question what the readers wanted the world to look like 20 years from then. Then, he said, 

“Even if China’s values won’t dominate us, but being so big and dominant, China’s values will be in constant conflict with ours, the then world won’t have peace. If China is a monolith we’ve to live with in future, we must change China now when it’s not fully fledged and it still depends on US and the West for trade and technology to fuel its growth.”

It was D1’s view that “China must be confronted, not appeased.”[654]  He said further: 

“We share America’s core values because of the legacy of our British colonial past, Hong Kong people are now fighting against China’s encroachment on our values, are also fighting as your partner in your new Cold War with China. We can also be a beacon to spread the values of democracy and human rights throughout China to increase its cost as a fear society and help America win the Cold War.”[655]

Towards the end of his article, D1 solicited the following support for the anti-ELAB movement in Hong Kong from the US Government:

“Meanwhile America government can help us by:

1) Deny student visas for children of leaders of Hong Kong and CCP who crack down on us. Expand student visas for Hong Kong and Taiwan citizens.

2) Use international fora to call China out for its religious persecution. And invite a religious representative group — a Uighur, a Chinese Catholic, Christian, Tibetan Buddhist to Oval Office for meeting.

3) Set up a panel of senators and congressmen to monitor Beijing’s adherence to Hong Kong’s basic law, keep the system of one country-two systems intact, and return Hong Kong people to the path of universal suffrage.”[656]

D1’s visit to US in July 2019

515.  In 2019, D1 made two visits to the US, one in July and the other in October.

516.  As regards the first visit, there is evidence that D1 departed Hong Kong on 25 June 2019 for the UK. He was in Canada by 3 July 2019. After some time, he went on to visit the US and returned to Hong Kong on 16 July 2019.

517.  Whilst in London, on 28 June 2019 D1 texted Benedict Rogers and asked if he could meet with Lord Alton[657]. Benedict Rogers replied later that night that[658]:

“Lord Alton has invited a mutual friend, Luke De Pulford, to join us. Luke is a Catholic, a member of the Conservative Party Human Rights Commission with me, and Lord Alton is a trustee of charity. We all work very closely together. So it will be you, Teresa, Luke, Lord Alton and myself”

In cross-examination, D1 said that he did have tea with Lord Alton, but Luke de Pulford did not turn up.

518.  D1 said that whilst he was in the US, he met some congressmen, including Rick Scott by the arrangement of Christian Whiton. D1’s WhatsApp records show that on 7 July 2019, D1 sent Nick Cheung a photograph of his meeting with Mike Pence[659]. Then on 11 July 2019, D1 also sent to Nick Cheung a photograph[660] of his meeting with John Bolton (who was then the US National Security Advisor).

519.  D1 said in his evidence that before his US visit, he was not aware of any arrangement made for him to meet Mike Pompeo and Mike Pence. He said the same about John Bolton, i.e., he only came to know about it subsequent to his arrival in US. D1 said that his side did not approach them for the meeting. D1 speculated that it must have been somebody in the White House who arranged Mike Pompeo and Mike Pence to see him. However, D1’s WhatsApp records suggested that the situation was not as D1 said in Court.

520.  The WhatsApp records found in D1’s mobile show that prior to his setting off from Hong Kong, on 20 June 2019 Mark Simon texted him and said[661],

“… we are securing the DC schedule and Jack will make request after G20. Mary spoke with Paul and she is working on Pompeo meeting.”

On 28 June 2019, whilst D1 was still in the UK, he was further informed by Mark Simon,

“We have set two meetings at White House. We are asked to keep these confidential at this time. Bolton has confirmed and the second meeting is tentative. We have other meetings set and one round table talk.

I will send to you later all details.

You will see an email from Bolton’s assistant. All is set.”[662]

521.  In cross-examination, D1 said that the two aforesaid meetings at the White House referred to the meetings with Pence and Pompeo. After the two meetings, Bolton’s was the second meeting.

522.  Then, on 8 July 2019 (the day before D1’s meeting with Pompeo), there was the following WhatsApp message from Mark Simon to D1 and “Paul”[663]:

“Dear Jimmy and Paul,

Mary Kissel called and she has two requests.

First, Mary is excited to see Jimmy, but protocol dictates there cannot be anything other than a handshake and a polite hello when we see her. There will be other people in the room and she wants to keep it professional and not indicate what good friends you are.

Secondly, in terms of what you have an opportunity to ask Pompeo, she suggests to keep it as specific as possible. The secretary is looking for insight on actions he can take specifically concerning Hong Kong. Mary counsels that he desires to learn how the US can help the movement. She said Pompeo doesn’t really talk grand scheme issues at these meetings. He is looking for actions he can undertake to help Hong Kong.

Mary didn’t offer up any ideas as she said she doesn’t want to be inappropriate. But it was thought that the concept of sanctioning the children of CCP and Hong Kong leaders who crack down on the Hong Kong protesters could be merge into the same actions as are being proposed for the CCP officials who are cracking down on the Muslims out west.

Also the idea of elevating Hong Kong and Taiwan to something akin to Berlin in the cold war would find favor.

Very high sensitivity in terms of wanting to be a positive force in protecting the Hong Kong protesters and the unique trading relationship between the US and HK.”

523.  D1 said in his evidence that Mary Kissel was his personal friend whom he had known for over 10 years. After she had left Hong Kong, Mary Kissel was an editorial writer of WSJ before she became the assistant to Mike Pompeo of the US. On 16 July 2019, D1 texted Benedict Rogers (who was in DC) and asked the latter to meet Mary Kissel[664]. D1 described her as “Pompeo’s most trusted senior adviser”. Upon D1’s request, Mark Simon gave him the telephone number of Mary Kissel[665]. On 19 July 2019, D1 texted Mark Simon and said that he had a great meeting with Mary Kissel the day before.[666]

524.  According to Chan Pui-man, on 9 July 2019 Apple Daily published a second edition[667] specifically for the purpose of covering D1’s meeting with Mike Pompeo, the then US Secretary of State. This was because D1’s arriving in the US and meeting with Pompeo was an important piece of news. In light of the articles written by the foreign news outlets that D1 had previously forwarded to her, she believed that D1 was very concerned about the views of the international community relating to the movement in Hong Kong. That was why they dealt with the news in this way.

525.  On 11 July 2019, D1 forwarded to Chan Pui-man a Bloomberg article, titled: “Trump Team Sends Defiant Signal to Beijing by Meeting Hong Kong Activist” about the aforesaid meeting which he received from Christian Whiton[668].

526.  On 12 July 2019, there was a report in Apple Daily with the headline: “Lai Chee-ying meets John Bolton, urging the Trump administration to support Hong Kong”.[669] According to the report, during the trip, apart from Pence, Pompeo and Bolton, he also met with Republican Senators Ted Cruz, Cory Gardner and Rick Scott.[670]  

527.  On 15 July 2019, there was an interview of D1 reported in the website of Fox Business, the title of which was: “US-China trade negotiations: Moral authority is great leverage against China, Jimmy Lai says”.[671]  There was also a push message by Next Animation of that interview with the title: “[Anti-ELAB Movement] Lai Chee-ying called on the US to voice their support to Hongkongers ‘Fight against China with power of Morality’ ”.[672] In that interview, when D1 was asked by the host what the importance of him meeting with people like Secretary Pompeo, John Bolton, and Vice President Pence was, and whether he felt that he had support from the United States, he said[673],

“Yes, that’s what I felt. And I was talking to them, that as the leader of the free world, American has a very powerful weapon, which is its moral authority. You know you have to use this, you know, to sow your moral authority by supporting us even morally. This is very important. We Hong Kong people is fighting the same war as you’re fighting with China in your Cold War, which is just starting and just you know it’s almost like that we are fighting your war in your enemy camp. You have obligation and the interest to support us because we we we 7 million people in China is a very, very tiny half percent, how you know, zero, half percent of the population. But we are so different because we share the same values as you that every time we fight and they kept they crack us down. We are reminding the world that China is not to be trusted.”

D1 described that it was a war of values[674]:

“… Let’s let’s look at the world 20 years from now. Do we want our children to live in the dominance of the Chinese dictator values or we want to continue the value we have enjoyed? Because definitely in 20 years China is going to be biggest economy in the world. And if we don’t stop them and try to let them to learn that authority to earn from moral force is a much greater force than you earn from using the barrel of gun. So it it’s it’s now for us to really to use moral authority, moral force to deal with China, even in your trade deal with China. A lot of people said that, look, we don’t want to rattle China while we are negotiating with China on the trade deal. No, you’re so wrong. Because the moral authority America has is a great force, a great leverage against China in this, in this negotiation. Because that’s one thing that you know, China don’t have, is one thing that they’re most vulnerable to. And why can’t you use it? If China sit down to negotiate, that means they need the deal. If they don’t sit down to negotiate, nothing matters.”

D1 arranging a “fact-finding” visit by US congressmen

528.  Shortly after D1’s return from the US trip, on 21 July 2019, he asked Mark Simon to arrange senators and congressmen to visit Hong Kong for “fact-finding” concerning the violence between the police and the demonstrators[675]. D1 referred to the US senator Henry Jackson’s amendment that, D1 said, led to the eventual disintegration of the Soviet Union. D1 said that,

“This visit by the US senators and congressmen can have momentous effect in guarding HK people’s freedom and rule of law. It’s something we’ve to accomplish with whatever resources we can put in to accomplish it.”

D1 added that,

“This is such a good idea that it may be a subject to bounce off with Matt and Mary, while we have Christian etc to convince the senators and congressmen to come. Discuss this with Bill. He may have ideas how we can convince those senators and congressmen.”[676]

D1 asked to have the fact-finding trip worked out with “Pelosi and Rubio. They can operate this finding within the capacity of their China Commission.”[677] 

529.  On 23 July 2019, Mark Simon reported,

“Christian and I spoke several times today and we have been told that Senator Cruz is setting a trip for October to Asia with a delegation of Senators. Christian also saw Sen. Johnson and made pitch for a quicker trip.”[678]

530.  On 2 August 2019, D1 forwarded to Mark Simon a link to Bloomberg with the caption “Trump Calls Hong Kong Protests ‘Riots,’ Adopting China Rhetoric” and D1 expressed his disappointment[679]. However, he later texted Mark Simon and said that Trump said made it easier and urgent for those senators and congressmen to come[680].

Visit by Rick Scott

531.  On 18 September 2019, Mark Simon updated D1 about senators’ visits to Hong Kong. D1 was told that Senator Scott would come in the last week of September and Senator Cruz in early October.[681] D1 replied that that was “great” and he asked, “How about Rubio”[682]. Mark Simon said that Rubio had been asked and he would follow it up[683]. On 21 September 2019, Mark Simon also said in the “Martin, Jimmy and Mark” WhatsApp chat group about the coming visits of Rick Scott in September 2019 and Ted Cruz in October 2019[684].

532.  On 23 September 2019, Mark Simon told D1 that Senator Scott was coming but he wanted to see D1 in person on Sunday the 29^th for “a one on one”[685]. On 28 September 2019, Mark Simon sent a reminder to D1 about D1’s meeting with Senator Rick Scott on the following day at 1:45 pm in Mid-Levels. Mark Simon told D1 that US Consul General Hanscom Smith, as well as a few staff would be present. Mark Simon would be there and he would meet D1 at a drop off point[686]. Mark Simon then briefed D1 of Scott’s background and described him as a “China hawk” and said that Scott would ask what it was that they needed here in Hong Kong from the US[687]. In the morning of 29 September 2019, D1 asked that the meeting be postponed to 2 pm. Mark said “Sure. Will do so.”  D1 then asked for the name of the “hk bill that just past congress and senate”. Mark Simon said[688],

“It is the “Hong Kong Human Rights & Democracy Act.

The Senate Foreign Relations Committee and House Foreign Relations Committee (sic) have both unanimously passed very similar versions out of Committee by unanimous consent.

It will now go to reconciliation, where the House and the Senate work out any minor details and then it will be presented to the full House and then full Senate for passing. After that it goes to President.”

“They expect it to pass Full House and Full Senate after October recess, and then be sent to Trump for signature.”

533.  We note that at 3:22 pm of the same day, Mark Simon told D1[689],

“OK the meeting is arranged, and they will be seeing them at 4:45.”

According to the evidence of Andy, by the arrangement of Mark Simon, he and “Cath” met with Rick Scott at 16:45 that afternoon. We will come to that in due course.

Visit by Ted Cruz

534.  On 4 October 2019, there were further WhatsApp exchanges between D1 and Mark Simon concerning the proposed visit of US Senator Ted Cruz to Hong Kong. D1 asked Mark Simon to arrange meetings between the Senator and the pan-democrats and he forwarded to Mark Simon a related message from Dennis Kwok who asked to meet Cruz. Mark Simon informed D1 that he was having Cruz meet with D1 and he was in contact with Cruz’s staff. He also said that “Consulate is arranging pan-Dems. I will see what Cruz wants to do”. [690]  

535.  There was evidence that before the formal withdrawal of the ELAB, there was already a scheme (which was consistent with the view expressed in D1’s WSJ article) to steer the narrative about the protests and other social events in Hong Kong so that it became a leverage to “subdue China”. On 5 October 2019, D1 texted Mark Simon as follows[691]:

“Mark,

A point I just made to Chris. Cheers.

Jimmy

Chris,

Making HK issue the talking point of American political narrative, hopefully the the (sic) West follows, is what we eventually will be able to subdue China. This point you make is very important. It’s the issue of making HK a talking point of American people’s relevance to China, so it becomes America’s political issue. The West will follow. Let’s make HK a moral leverage the US and hopefully the West when they deal with China. What are we facing with China is a moral issue. They don’t follows rules because they don’t share our values. If we win them over morally to our side we’ve peace, otherwise no. That’s a war of values. Cheers. Jimmy”

To this, Mark Simon replied that that was the narrative they would push. He also said that he was working on the Cruz visit and that they had a congressional staffer group in Hong Kong in the following week and he would see if it fit D1’s schedule[692]. Subsequently, Mark Simon informed D1 that the dinner was fixed on 10 October at Grand Hyatt. D1 said he would join and he asked “How about Albert and Martin also?”  Mark Simon said that D1 had to be there and he would arrange.[693]

536.  On 9 October 2019, Mark Simon said “Anson” had informed him that the meeting with Cruz was at 3:30 pm on Saturday 12 October 2019 at Hong Kong Club and the reservation was made under the name of “Mrs Chan”[694]. In the morning of 12 October 2019, Mark Simon forwarded to D1 a “Leader’s Weekly Schedule” which said, among other things, the following:

“Legislation Considered Under Suspension of the Rules:

1) H.R. 3289 - Hong Kong Human Rights and Democracy Act of 2019, …

2) H.R. 4270 - PROTECT Hong Kong Act, …

3) H.Res. 543 - Recognizing Hong Kong’s bilateral relationship with the United States, condemning the interference of the People’s Republic of China in Hong Kong’s affairs, and supporting the people of Hong Kong’s right to protest, …”[695]

537.  In D1’s mobile, there was a photo sent to him by Dennis Kwok on 13 October 2019 taken at Hong Kong Club showing D1 with Dennis Kwok, Ted Cruz, Anson Chan and Charles Mok.[696]  The visit of Ted Cruz to Hong Kong was reported in Apple Daily on 13 October 2019 with the headline: “U.S. lawmaker bombards Carrie LAM’s cancellation of meeting as weak (and) appeals for non-violent protests to arouse global attention”.[697] The visit took place when the US House of Representatives was going to vote on the Hong Kong Human Rights and Democracy Act in the following week.

D1’s US trip in October 2019

538.  After D1’s 1^st trip in July 2019, there was a second one in October 2019. In the “Martin, Jimmy and Mark” WhatsApp Chat group, on 17 September 2019 Mark Simon wrote[698]:

“Dear Martin, Jimmy, Jim.

After speaking/seeing people that we met with last time, it is suggested the best days in DC are the evening of Monday Oct 21st to Thursday the 24th.

We are attempting to schedule everybody we saw last time, but there is a much larger desire for all to see Pelosi and her team along with more Senators and staff. We will also be undertaking significant media in DC.

We will go Thursday night to New York where we have multiple meetings with media being set up.

I am advised that a moderately sized delegation of senior pro democracy figures who will come on this trip would be most productive & meaningful.

I will address this in the next message.

I have been asked to be in DC, to be present at the Senate hearings on East Asia, Wednesday, as well as meeting on HK Democracy Act.

From this trip we hope to have word on Congressional delegations coming to HK in early October.

Will update.”

Mark Simon went on to say[699]:

“The above message was dates/facts/times.

Here I just wanted to make all aware that I don’t think the groups of our young friends that have been going through New York and DC have been effective.

In fact friends of all of ours at WSJ & NYT found the visitors to be somewhat unserious.

Joshua went to jail, so I have nothing but respect for him. But after listening to three groups of people who heard from them it is my belief that the “seniors” of the democratic movement need to come to the US and reassure the US that as one gent put it, “the eyes are on the prize”.

He is asking if HK remains focused on moving the ball toward universal suffrage, or are we going to hear visitors to DC justifying breaking up MTR stations.

No one gives short shift to the struggles of the Hong Kong people, but I think the seniors, including Martin and Jimmy, who are on this message need to show up in US at the suggested times.

Usually I would say that’s just my opinion, but it’s not, as people asked me when are the Democracy stalwarts coming.

Rgds

Mark”

D1 replied that he would be available for these trips[700]. Martin Lee also said that he had “already reserved the week commencing Monday, October 21 for the trip.”[701]

539.  On 23 September 2019, in the same chat group, Mark Simon wrote:

“Just as a note.

In October we will see all editorial boards, WSJ/NYT/& WashPost

We are going to work the Senate and House quite heavily. Pelosi & Mcarthy are yes’s. Rubio also a yes, (but nailing him down never easy).

There is a desire for a forum at Georgetown, (Jim might have better ideas).

Also, AEI wants a forum and I think we should see Brookings.

WH says yes, but as usual Trump/Pence confirm when they confirm.

I am back Wednesday to HK.”[702]

Mark Simon also said:

“One other nice thing, White House NSC staff is seeing the HK College leaders who are in town. Sunny Cheung will take Group in. (That’s good for them and HK.)” [703]

“WH NSC say they would be happy to see you/Martin, who else you bring. But no one will confirm whether President or VP will be around & what day is available. (Very normal).”[704]

540.  In cross-examination, D1 said that “WH” stood for “White House” and “NSC” stood for “National Security Council”. He agreed that at the time when Mark Simon sent those message to him, Mark Simon was in US planning the itinerary and making arrangement for D1’s meetings there in October 2019. D1 said that, despite the withdrawal of the ELAB in September 2019, there were still demonstrations in Hong Kong. The purpose of his visit was to seek the support of the US Government for freedom and universal suffrage in Hong Kong. On the other hand, D1 said that he did not know what Mark Simon said by “We are going to work the Senate and House quite heavily”. He said that he did not want senators and congressmen to work on the Hong Kong Human Rights and Democracy Act[705].

541.  In cross-examination, D1 said he had not met Sunny Cheung during his US trip. He was then shown a news report of Apple Daily  dated 22 October 2019[706] where it was said:

“Jimmy Lai landed Washington from San Francisco early on Tuesday morning, Hong Kong time. Together with Samuel Chu, director of the Hong Kong democracy council (HKDC), and Sunny Cheung, spokesperson for the International Affairs Delegation of the University of Hong Kong, they met with four Republicans. Party senators, including STEVE DAINES, TODD YOUNG, DAVID PERDUE, and BE SASSE, they met for an hour.”

D1 said that the report might be wrong, because he really did not remember he ever saw Sunny Cheung in the US[707].

542.  The news about D1’s said trip to the US was reported in the Digital Form of Apple Daily on 22 October 2019.[708] The editing of the video footages[709] was done by staff members under Nick Cheung. Chan Pui-man confirmed that the news was also reported in the Print Form on 23 October 2019.[710]  In D1’s mobile, there was a photo sent to him by Mark Simon showing Nancy Pelosi with D1, Martin Lee and Janet Pang.[711]

543.  Chan Pui-man said that D1’s trip on this occasion was consistent with his stance all along. D1 was of the belief that they should try to get foreign countries to exert pressure on the HKSAR Government. At that time, there was a movement for the “Five Demands”. Apart from the demand for the withdrawal of the draft bill on fugitive offenders, there were also voices in the society concerning alleged police brutality and the request for an independent inquiry to look into the matter. It was D1’s stance that pressure should be exerted on the HKSAR Government through foreign governments in order that these demands be met. At the time, the Congress of the US were discussing the Hong Kong Human Rights and Democracy Act. To her knowledge, D1 had met with some members of the House of Representatives.  

544.  On 23 October 2019, D1 sent to Martin Lee a photograph showing both of them, Nancy Pelosi and Janet Pang[712]. On 24 October 2019, Martin Lee sent D1 two photographs: the first one showing D1 and Rick Scott holding a T-shirt with the words “Stand with Hong Kong 光復香港 時代革命”[713] ; and the second one showing D1, Rick Scott and Martin Lee at a table[714]. D1 said in Court that the aforesaid T-shirt was not his but that Rick Scott used it as a photo prop. D1 said he held the T-shirt together with Rick Scott for the photograph out of politeness.

545.  In cross-examination, D1 agreed that the whole purpose of this US trip was to meet Pelosi and her team along with more senators and staff.

The 2019 District Council Election and Independent Electoral Observation Mission (“EOM”)

546.  On 14 November 2019, Benedict Rogers texted D1 and informed him that Lord Alton was coming to Hong Kong from 23 November to 26 November as part of a group to monitor district council elections and that he would like to meet D1 and Cardinal Zen, Martin and others[715].

547.  On 16 November 2019, Benedict Rogers texted D1 again[716]:

“A quick question. As I mentioned a group of international Parliamentarians are planning to come to observe the elections, including Lord Alton. But one of them has asked about security. What is your view? Is it a good idea or is it too risky in terms of safety?”

D1 replied that there was no security problem[717].

548.  According to Chan Pui-man, on 16 November 2019, D1 asked her and Lam Man-chung to find some photographs showing police brutality from Apple Daily for him to choose.[718]  She identified a series of WhatsApp exchanges she had with D1 on that day which was about the designs of posters with the message, “Please vote to stop police brutality”. The posters, Chan Pui-man understood, were to be printed by Apple Daily Printing Limited for the coming District Council election on 24 November 2019 asking people to come out to vote.[719]

549.  On the following day, i.e., 17 November 2019, Benedict Rogers forwarded to D1 a press release of the “EOM” in which it was said that the activity was co-organised by “Fight for Freedom. Stand with Hong Kong” and “Hong Kong Story”[720].

550.  There was an arrangement by Benedict Rogers for D1 and Cardinal Zen to have a dinner gathering at W Hotel with Lord Alton and “Luke” on 24 November 2019. Martin Lee and Anson Chan had also been invited but they could not make it[721].

D1 seeking for a leadership group

551.  After the results of the 2019 District Council Election were known, on 25 November 2019 there was a discussion in the “Martin, Jimmy and Mark” WhatsApp chat group as to the way forward. James Cunningham advised[722]:

“As I said in the what’s to be done note, knowing the balance of force/leverage will be crucial. If the elections come to be seen as a validation of continued violence in demonstrations, I fear that will be a huge strategic mistake. The goal should be acquiring political power over the establishment and bringing elements of it along. That cannot be imposed as a defeat. Beijing will not allow that. Goal now should be the Legco elections and a path to getting inside the CE process.”

552.  D1 replied[723],

“Nobody sees the landslide victory as endorsement of violence. They’re not stupid. They see it as a way we can moderate our resistance violence because we now have two channels to resist the government. Leaving alone in the street to fight the young kids tend to go to the extreme in response to police’s escalating violence. Now we’ve the balance of two ways to resist. The coordination of the two will moderate our street confrontation. The next step to to (sic) have a leadership group to direct our future movement so we won’t go out of hand. That’s the direction to go.”

We will revisit this topic on D1 proposing a leadership group when we deal with Wayland’s evidence about the Taipei meeting with D1 and Mutual Destruction Bro.

D1’s response to the Hong Kong Human Rights and Democracy Act (“HKHRDA”)

553.  On 27 November 2019, the HKHRDA was signed into law.

554.  According to the expert opinion of Professor Wang[724], the HKHRDA:

•  amended s.205 of the US Hong Kong Policy Act by requiring the US Secretary of State to report to the Congress by issuing certifications, on at least an annual basis, to indicate “whether Hong Kong continues to warrant treatment under United States law in the same manner as United States laws were applied to Hong Kong before July 1, 1997”; 

•  amended s.206 of the US Hong Kong Policy Act by providing the treatment of certain Hong Kong applicants for visas to study or work in the US. In essence, “applicants who resided in Hong Kong in 2014 and later, may not be denied primarily on the basis of the applicant’s subjection to politically-motivated arrest, detention, or other adverse government action”;

•  contains provisions for protecting US citizens from rendition to China;

•  requires the US President to identify certain foreign persons and report to the relevant committees of the Congress;

•  once a person is identified, sanctions shall be imposed, which include: (1) asset blocking, (2) ineligibility for visas, admission or parole and revocation of existing visas. Moreover, the right of privacy of the identified foreign person shall be deprived; and

•  any person other than those being identified foreign persons “that violates, attempts to violate, conspires to violate, or causes a violation” of the provisions relation to sanctions on identified persons is subject to penalties in accordance with the US international Emergency Economic Powers Act.

Professor Wang opined that the HKHRDA was part of the efforts of the US in formulating a mechanism imposing sanctions on HKSAR and China during and subsequent to the violence that took place in the HKSAR in 2019.

555.  On the morning of 28 November 2019 at 07:35 (HKT), Nick Cheung forwarded to D1 a news report of the Digital Form that President Trump of the US had signed the HKHRDA and that it had become effective[725]. D1 replied[726]:

“Very good! Everyone can breathe a sigh of relief. Thanks. LAI”

556.  Shortly afterwards, at 07:52:57 (HKT), in the “Martin, Jimmy and Mark” chat group, Martin Lee informed that President Trump had “signed these bills”[727]. Mark Simon then remarked[728]:

“I was at the national security council yesterday, they were laying the groundwork for signing the bill. Trump decided last week to sign it, but he wanted to try and not give Xi any leverage on trade talks.”

D1 added[729]:

“Trump knows how powerful HK is as a leverage for his trade deal and beyond. He’s determined it’s a long fight with China. The new Cold War has just unfolded officially. HK has gathered more wherewithal for its resistance. The world is standing closer to us.”

Then, at 09:10:57 (HKT), D1 texted Benedict Rogers[730]:

“Good news for us. With the US support endorsed by its President plus the landslide victory on Sunday, our resistance movement is turning a new page. I just don’t know how this new page unfolded in time. But it’s going to be good for sure. Cheers.

Jimmy”

557.  It is noted that, regarding the HKHRDA, D1 wrote on 22 December 2019 in his column “Sink or Swim, Smile” the following:[731]

“… Although we have suffered heavy casualties in the Anti-ELAB movement, we have refused the draconian law and united the people of Hong Kong to protect our homeland with determination. We gained the support of the countries and people of the free world, led by the United States. There was passage of the Hong Kong Human Rights and Democracy Act by the US government and overwhelming victory in the recent District Council Election. As long as we keep trying not to lose heart, it is absolutely possible for us to win back finally our right to universal suffrage under the Basic Law.”

(「…我們逆權運勳雖然傷亡慘重，我們卻阻擋了送中惡法，團結香港人萬眾一心保護家園的決心，獲得了以美國為首的自由世界國家和人民的支持，美國政府通過（香港人權與民主法案），和和最近壓倒性的區議會選擧勝利，只要我們堅持不灰心，最後贏回《基本法》賦予我們普選的權利，絕對有可能。」)

D1’s discussions with others on the “Magnitsky Act”

558.  In D1’s iPhone, the police found a series of email exchanges between 24 April 2020 and 3 May 2020 under the subject “Magnitsky Act”. Parties included in this email chain were Paul Wolfowitz, Mark Simon, Christian Whiton (who was D1’s political consultant when he visited the US), Rupert Hammond-Chambers, Jack Keane and D1[732].

559.  On 24 April 2020, Paul Wolfowitz sent an email to Mark Simon, Christian Whiton and Rupert, copied to D1 and Jack Keane, asking whether anything had been done about Magnitsky Act vis-à-vis Hong Kong. He quoted a message from the @UNHumanRights @WilsonLeungWS which said[733],

“Talk is cheap. China and HKGov’t won’t care this at all if no action is made.

Sanction CCP and HK officials is a way to stop them suppressing pro-democracy activists in Hong Kong.” 

Under cross-examination, D1 said that he knew that the Magnitsky Act was about sanction, but he did not know at the time that it was a form of targeted sanction aimed at individual of human rights abuse. He said he did not go deep into it.

560.  Mark Simon replied to Paul Wolfowitz’s query and said[734],

“No and I don’t see anything common (sic). We had a conversation last week with Senate staff, and it’s their belief that until we actually see some convictions or some actual changes nothing will happen, which I think is not a bad idea because we really can’t do anything until they do something. Just arresting people is not enough in my mind.

With all that said I know the Nsc does have a pretty good idea of who they would not object to being hit with the Magnitsky sanction”

There is no dispute that “NSC” referred to the National Security Council of the US. It is not in dispute that the first time the US formally sanctioned Hong Kong and Chinese officials was on 7 August 2020 for allegedly undermining Hong Kong’s autonomy under the Hong Kong Autonomy Act. In cross-examination, D1 said in Court that when Mark Simon had communication or contacts with the NSC staff or Senate staff, he was acting on his own and the connection was his own connection. On the other hand, Mark Simon was acting for D1’s benefit and information and people talked to him because he was D1’s assistant.

561.  On 25 April 2020, Christian Whiton joined in the discussion and said, “To add to what Mark said, one problem is the lack of a clear villain” that fit “the Glomax criteria”. He noted that there was “the new liaison guy” sent down from Beijing. However, even if they were calling the shots, it was hard to find hard evidence[735]. The aforesaid email of Christian Whiton was addressed to Mark Simon and copied to the other four persons. Later on the same day, D1 sent his reply to Paul Wolfowitz alone (without copying it to others):

“America is our only savior left now. If America doesn’t act we will be done very soon.”[736]

562.  On 3 May 2020, Christian Whiton sent another reply email addressed to Paul Wolfowitz and Mark Simon, which was also copied to Jack Keane, D1 and Rupert Hammond-Chambers. Christian Whiton said[737],

“Paul,

Please take a look at this Bloomberg article. Given statements like these, I wonder if Luo Huining, new boss of the liaison office, might be a Glomax candidate at some point in the future if we tie him (perhaps even only abstractly) to future police brutality or moves against LegCo candidates ahead of elections.

The Glomax criteria (enclosed in Section 3 of attached pdf) is crafted foremost for people who torture or disappear people who expose corruption, but we might be able to nail Luo based on him being an ‘agent’ of a government engaging in ‘gross violations of internationally recognized human rights’ as long as we can make the political case. Depending on how things develop… We might be able make the case on the Hill that he is perfect target as someone who embodies Mainland interference in explicit violation of the Basic Law.

Christian”

The “statements” which he referred to were the comments of the Liaison Office in Hong Kong against extremist radicals who were involved in illegal gatherings, harassment of shops and throwing of petrol bombs. Attached to the email of Christian Whiton was a draft Bill[738] with the long title:

“To impose sanctions with respect to foreign persons responsible for gross violations of internationally recognized human rights, and for other purposes.”

563.  In cross-examination, D1 said he did not read the attachment. In D1’s reply email to the aforesaid email of Christian Whiton on the same day (which was copied to the other four persons), he said[739],

“Chris,

Great idea! Thanks. Jimmy”

D1 said the above-mentioned emails of Christian Whiton were voluntary and D1’s reply email to him was just like an appreciation.

564.  After D1’s email, also on 3 May 2020, Paul Wolfowitz replied to Christian Whiton and Mark Simon (which was copied to the three others). He said, “My original question about Magnitsky was inspired by this blatantly biased Hong Kong judge WK Kwok.”  He said also, “I would also go after the retired police chief - retirement shouldn’t excuse past misbehaviour.”  He also referred to Chen Quanguo, then party boss in Xinjiang who he said was “previously responsible for atrocities in Tibet” and who he said, “should clearly be a candidate for sanctions.”[740]

“One Hongkonger, One Letter to Save Hong Kong”

565.  On the morning of 22 May 2020, there was a series of WhatsApp messages between D1 and Cheung Kim-hung, at the beginning of which D1 asked[741]:

“Kim-hung, please consider Apple Daily’s initiation of “One Person One Letter to Save Hong Kong”. We will print envelopes of “One Person One Letter to Save Hong Kong”, to be distributed on Sunday or Monday. Each newspaper contains 10 envelopes. Notice will be given on Apple Daily’s front page ad one day before. Thanks. LAI”

“We ask people to write to the President, Vice President, Secretary of State and Members of Congress of the United States. On the same day, we will print their mailing addresses on Apple Daily and put them on the online news. Thanks. LAI.”

As to the aforesaid, Cheung Kim-hung replied[742]:

“Good morning, Boss, got it. Will online letters be OK?”

D1 said[743]:

“Paper Letters are more impactful”.

D1 then told Cheung Kim-hung that Nick was asked to deal with design and Wai-keung to deal with printing matters[744]. He also said that the paper letters would bear Apple Daily’s logo and that the reporting by the media of the campaign would help to promote subscription to Apple Daily among Americans[745].

566.  According to both Cheung Kim-hung and Chan Pui-man, what prompted D1 to initiate the campaign was the news about the imminent introduction of the NSL.

567.  Cheung Kim-hung also said that within an hour after the aforesaid series of WhatsApp exchanges, D1 gave him a short phone call and said that he wanted the President and Vice-President of the United States to impose sanctions on China for this matter. Cheung Kim-hung told the Court that on that very morning after the series of WhatsApp messages were exchanged, D1 had to attend Court to make an application for the return of his passport. Cheung Kim-hung also went to court because he was prepared to be D1’s surety. As a result, Cheung Kim-hung was not free to go back to the office that morning. D1 himself therefore handled this matter. In cross-examination, it was put to Cheung Kim-hung that there was no telephone call between him and D1 regarding “One Hongkonger One Letter to Save Hong Kong” and that D1’s instructions were only in WhatsApp. Cheung Kim-hung disagreed to both of these propositions.

568.  Chan Pui-man said in her evidence that even though both Cheung Kim-hung and Chan Pui-man were not comfortable with the idea, D1 insisted. By this campaign, D1 hoped to get the attention of President Trump of the US so that something could be done to stop the legislation of the NSL.

569.  D1 also copied his messages to Cheung Kim-hung about the campaign on 22 May 2020 to Royston Chow[746] and asked the latter to follow up on the matter. Royston replied affirmatively[747]. In his evidence, Royston said that he approached Cheung Kim-hung and a printing company for the printing of the letter. In cross-examination, Royston disagreed with the proposition that the issue of “One Hongkonger, One Letter” campaign was never discussed in any of the lunchbox meetings which he attended.

570.  On 24 May 2020, Chan Pui-man forwarded to D1 the open criticism by Joshua Wong of the campaign[748]. D1, however, replied to Chan Pui-man by saying,

“What he says doesn’t matter. That’s a very different view of looking at US and the matter at hand. I don’t agree with him, whatever we can secure to help us we must use now. I know a lot of people don’t agree with this including Martin, but now is time crisis we can’t pretend to be careful and clever. The only way is to be brave! There’s no other way to deal with CCP now.”[749]

The advertisement of the “One Hongkonger, One Letter to Save Hong Kong” campaign continued to appear in Apple Daily on 25 and 27 May 2020.

571.  As mentioned before, the full-page advertisement of the “One Hongkonger, One Letter to Save Hong Kong” campaign first appeared in the front page of the Print Form of Apple Daily on 24 May 2020[750]. The same advertisement also appeared in Section A of the newspaper on 25 May 2020[751] and 27 May 2020[752] respectively. As regards the Digital Form, there was an online form appealing to the readers to make a signed letter to the US President, Donald Trump, and a template of which was provided so that readers could just copy the template and sign on it. Means for sending the letter to President Trump by way of Twitter, Facebook or email were provided in the advertisement. Besides, there was a tweet about the campaign in D1’s personal Twitter account on 24 May 2020.

572.  As a sequel to the campaign, we note that on 27 May 2020, Jack Keane forwarded the article: “U.S. Weighs Sanctions on Chinese Officials, Firms Over Hong Kong” to D1, Paul Wolfowitz, Rupert Hammon-Chambers and Mark Simon[753]. The article said that the US Government was considering a range of sanctions to punish China for its crackdown on Hong Kong and that the Trump administration weighed whether to declare that the former colony had lost its autonomy from Beijing. To this, D1 commented[754],

“In my opinion termination of HK Human Eights (sic) and Democracy Act hurts only HK’s residue value as perceived by CCP and is of little effect to hinder their action. The most effective way is to freeze the bank accounts of Chinese officials’ corrupted money in US and the West. All the top officials will so be scared that they may try to delay the imposition of the HK National Security Law. Cheers. Jimmy”

Jack Keane agreed to what D1 said.[755] D1 forwarded the article from Jack Keane to Chan Pui-man[756] who said, “Got it. thx”[757].

D1’s messages in “DC Dems” chat group

573.  On 29 May 2020[758], Mark Simon created a WhatsApp chat group “DC Dems” and other members in the group included James Cunningham, D1 and Paul Wolfowitz[759].

574.  In that chat group, Mark Simon related to the other members of the group information which, he said, was from David Feith of the State Department of the US and who, he said, was “part of team making US response”[760]. As regards this David Feith, in cross-examination D1 said that he did not know the former well but he knew that he had worked for Wall Street Journal. According to Mark Simon, David Feith had informed him that the State Department no longer wanted to keep the Hong Kong special status and it was strongly agreed among the officials of that department on “visa, officials’ families, university access, etc.” [761]

Mark Simon went on to say:

“Part two, is I really think we need to reach out to more democratic leaning think tanks and especially people who are key movers in the Bible (sic) campaign. Jim has already made a few approaches and I think that a fine job representing the situation to the Biden people. But I do think we need to find a way to Develop our message throughout the Biden campaign. Jeff Prescott, Jake Sullivan, Ely Ratner, & and of course Tony Blinken Will be key individuals if there is a Biden presidency. More importantly at this point in time they are influential in the democratic foreign policy mindset”[762]

“I’d like to find ways to reach out to them for Jimmy to talk to them but also for Martin Lee, Anson Chan, and other of our more left leaning people in Hong Kong to make an impression”[763]

575.  Then D1 responded by saying, 

“I think the most sanction at this initial stage is to freeze the bank account of China officials corrupted money in US and Europe. Rescinding the HK bill destroy the residue value of HK and hurts only HK people, since obvious Zi has given up HK’s for him.

Thanks. Jimmy”[764]

“I agree pushing for immigration politically is not a good message. Punish China is the only way to stop the crisis.”[765]

576.  James Cunningham told the group[766]:

“I am in contact with State and with the Biden Campaign and Carnegie Endowment. Will have discussion with Carnegie tomorrow I hope. From a well. Placed source at State”. Specifics of implementing the decision have not been decided, and there will be HK and PRC tracks. Guiding principle is to punish Beijing, not HK. But up to Trump in the end and he seems to want something soon. They are not impressed with the Joseph Wongs of the world who want to bring the HK edifice crashing down around them. They are also very aware of the need to preserve ammunition for the future, esp. with regard to the Legco elections which could be a huge tipping point. Also concerned about what role the Beijing Security organ will play. With regard to US and Int’l business, I suggested they be advised to consider not what HK status will mean for them — that may not be decided for some time — but to consider what the Security Law will mean for them. A clear and present danger. Tara Joseph at the AMCHAM made a good statement along those lines the other day. Jim”

D1 responded[767],

“I agree. Punish China not hurting HK. More HK is hurt less value to China easier for them to give up. China needs HK as a channel to outside at its economic worst.”

577.  Later, Mark Simon reported[768]:

“Webex Cap Hill conference on HK at 6 this evening. (Christian let me in).

…

In terms of HK action, best reception was for a limited sanction list on HK individuals. Thoughts from House GOP member was to make it hurt, but make it limited in scope, maybe 10-15 individuals. Get it done quickly is goal.

As for China, lots of support for sanctions on CCP members. But the people who know what Trump admin considering begged off on an open forum. (Christian & Peter Mattis will call me after they do a more limited call).

…”

To this, D1 said “Thanks. Jimmy”[769]

578.  On 4 June 2020, Mark Simon wrote[770],

“I’m going to be in DC tomorrow and then next week again. I’ll be seeing folks on the Democratic side of the house and senate. Also stopping by to see a few of our old friends and the administration.

—

The Biden team seems quite content not to engage on Hong Kong, we can Keep trying”

D1 responded[771]:

“Yes, that’s what my feeling, too. So our effort should be directed more on the administration and republicans. Thanks. Jimmy”

579.  James Cunningham said[772],

“I will keep reaching out. There is concern about getting sucked into a rhetorical ‘race to the bottom’ on China. I hope they are messaging in private. May have more options on the Hill. Tom Malinowski, Dem from New Jersey tough on human rights, for instance has spoken in support of HK. But unfortunately in context today the focus will be on pointing to Trump lack of strategy, not specifics on what Democrats will do. I am arguing for thinking about how to prevent Beijing from treating HK like China, assuming the Security Law is passed. June 4 demonstration was very impressive.”

D1 giving publicity to “Pompeo meeting Tiananmen Survivors”

580.  On 4 June 2020, D1 forwarded to Simon Lee[773], Cheung Kim-hung[774] and Chan Pui-man[775] respectively a series of messages which he received from Mark Simon[776]. Those messages were about two pieces of news, namely: (1) Pompeo “meeting Tiananmen survivors”; and (2) his giving a special “International Women of Courage” award to the Tiananmen Mothers[777]. According to Mark Simon, the messages came from a female friend in “Pompeo’s team” who hoped that “Apple can give it some publicity that we can show Pompeo”.

581.  On the same day, D1 sent the following to Simon Lee[778]:

“Mr. Secretary Pompeo,

With your encouragement we’ve no reason not to brave out to vigil tonight in memorial of 6.4 Tiananmen Massacre. Mr. Secretary, Thank You!”

582.  On that day, among the tweets posted in D1’s personal Twitter account, there were the following: 

•  “Mr. @SecPompeo thank you for standing with the people fighting for freedom. The history shall not forget, no matter how much #CCP wants to distort the facts. #6431truth”[779]

•  “#TiananmenMothers carried the touch in the past 31 years despite #CCP’s oppression and surveillance. It is a shame that #CarrieLam, who is also a mother, intimidate #HKers for our remembrance of what happened just 31 years ago. #6431truth”[780]

•  “@SenRubioPress thanks for sharing the ＃6431Truth about #TiananmenMassacre”[781].

583.  As regards Chan Pui-man, she informed D1 that the news about Pompeo meeting with Tiananmen survivors had been published that day.[782] D1 then forwarded the following quote and asked Chan Pui-man to see if it needed to be added to the article[783]:

“How we respond to the People’s Republic of China and the Communist Party’s attempt to reshape the globe is the defining foreign policy question of our time. This challenge is much greater than any individual country, administration, or political party, which is why democracies worldwide need to come together as we are doing today.”

Unbeknown to Chan Pui-man, that was a quote from Senator Marco Rubio which Luke de Pulford passed to D1[784]. Chan Pui-man forwarded the quote to her colleagues. Eventually, the two pieces of news were reported in the Print Form of Apple Daily on 5 June 2020 and a reference was also made of Rubio’s statement[785].

D1’s intended US trip and application to lift travel restriction

584.  On 12 June 2020, there was an application by D1 to the Court of First Instance for the lifting of his travel restriction. Before dealing with the evidence of that incident, it is necessary to have regard to the following background.

585.  Back in late February 2020, D1 was told that he should visit the US again to meet Vice-President Pence to discuss the coming primary election of pan-democrats of Hong Kong. This was evidenced by the WhatsApp message on 25 February 2020 where Mark Simon told D1[786]:

“VP Pence and senior staff read ur (sic) piece in WSJ. NSC Staff told me friday when I spoke with them in follow up to meeting several days earlier.

They are anxious to see you when here. I was quite surprised at the level of knowledge they have about the Pan-Dem primary, and I think you’re going to be asked about what, if anything US can do to press Beijing to keep things honest during election.

…”

586.  Yet, that trip was rendered not possible by the reporting condition and travel restriction of D1’s bail imposed on 5 May 2020 by the Magistrates’ Court in relation to an unrelated case. D1 informed Mark Simon about it on the same day[787]. Mark Simon then said he would “make sure all know about your travel restrictions”[788] and those included “folks in DC as Cruz and Pence staff had asked.”[789]

587.  As aforesaid, there was an application on 22 May 2020 from D1 to remove his reporting condition and to lift his travel restriction. It is noteworthy that it was not D1’s one of stated purposes that he wanted to go to US for the purpose of meeting US officials there. On that occasion, D1’s reporting condition was removed by consent. As regards the lifting of D1’s travel restriction, since he had not provided any concrete travel plan at the time, that respect of his application was adjourned sine die, with liberty to restore[790].

588.  Later on the same day, D1 texted Mark Simon and talked about his intention to renew his application to lift the travel restriction:

“Ok. I’ll try. First I’ve to get my granddaughter’s birth certificate to make my application legitimate. I hope my daughter will give birth in the next few days so I can be sure of the date of my trip to US. Thanks. Jimmy”[791]

Later in the afternoon, D1 informed Mark Simon[792]:

“Mark,

Jade gave to this beautiful fat baby girl yesterday. Her birth certificate should be here in a week or so. So if I fly to NY and spend 14 days quarantine I should be able to have lunch at around June 20 or so. I hope is reinstated. It’s a good protection at this time of crisis. Hopefully see the big boss, too. Thanks. Jimmy”

In reply, Mark Simon said that once they got travel dates, he would start talking to people.

589.  In cross-examination, D1 said that by “big boss” he meant Pence, as he was not expecting to meet Trump. He said that Pence was “their big boss”, not his. He said he hoped that his lunch appointment (which had been rendered impossible by his travel restriction) could be reinstated. He insisted that the main purpose for his application for bail variation was to see his granddaughter rather than to meet with the US administration. He said that he did not deliberately conceal his plan to meet with US officials, because at that time to visit US officials or congressmen was not a big deal. He disagreed that by “this time of crisis” he was referring to the coming of the NSL.

590.  On 30 May 2020, the two of them discussed D1’s plan to visit US: (1) to meet with some “congressmen” or their senior staff, “the NSC people”, “the statement department” and “Pence”; and (2) to see his newborn granddaughter[793]. As regards the dates of the trip, Mark Simon said[794]:

“Jimmy, US has no quarantine requirements, but US government & Congress does. Any meetings at WH have to get cleared and that will mean some delay and testing, as I just went through.

Also, few members of Congress in town. Hopefully we will see them back on June 15th.

Do you have dates yet?”

D1 replied:

“My date is any date you set for me. Or they set for me, though I’m eager to see my granddaughter. Thanks. Jimmy”[795]

591.  Then, on 8 June 2020, D1 forwarded to Mark Simon the itinerary of his trip to the US between 24 June and 19 July 2020[796]. In cross-examination, D1 agreed that his plan at the time was that he would meet Mike Pence in Washington after 4 July 2020. He agreed further that at the time, he was aware of the NPC decision made on 28 May 2020 that the NSL was coming. He said that both he and Mark Simon had overlooked that the NSL was coming.

592.  On 12 June 2020, D1 renewed his application to lift the travel restriction before the High Court. When D1’s application for variation of bail conditions was heard in the High Court, senior counsel put forward on D1’s behalf four specific purposes for the US trip[797]:

(1)  to visit his daughter and her newborn baby who live in New York City and to spend time with the family there;

(2)  to go to Buffalo City in New York State to meet members of his staff from Canada to discuss business plans for his two hotel chains which operate in Canada;

(3)  to go to Washington DC to meet a service provider of his newspaper (Apple Daily) and also to meet representatives of some media companies to promote the recently developed English section of Apple Daily ; and

(4)  to discuss a possible acquisition of a hotel in Little Washington VA.

593.  It is of note that nothing was said about D1’s intended trip to the US to meet with Mike Pence, other officials of the US administration and congressmen. In cross-examination, D1 said that at that time, he was “carefree” and did not think meeting the US officials was a big deal. He said that the main purpose of the trip was to see his granddaughter. He disagreed that he used the birth of his granddaughter as an excuse, because he wanted to go to see her anyway. He said he arranged other meetings during the trip for convenience.

594.  Shortly after D1’s failed application to lift his travel restriction, he informed Mark Simon about it[798]. Mark Simon had already heard about it. He told D1[799]:

“Yes, I’m sorry about that. I just pulled in from two days in Washington. I saw the guys at the Nsc, as well as have breakfast with Mary, and then I had some meetings on Capitol Hill. I’ll have a cuppa tea and then I will write you a report very quickly”

D1 said further[800]:

“It’s ok. We just have to do what what (sic) I can from here.”

Mark Simon then said[801]:

“We can get a lot done. As FYI. Monday night Father Sorico (sic) has a zoom with you, a recording for his function, where you were supposed to get an award. He does have a good mailing list of Catholic legislators, and even Pelosi will see it as this is the one event that he does that she pays attention too.

Julie has tentatively put it in your schedule, and she said you’re open that night if it’s OK with you”

595.  In the following morning (i.e., 13 June 2020) at 09:28 (HKT), Mark Simon texted D1 and said[802]:

“Just FYI, today I have fielded about 12 calls from everyone from the Nsc staff, to state department Desk officers, and people on Capitol Hill as well as journalist friends checking on you.

Disappointment that you wouldn’t be coming, but also quite concerned about your well being.”

596.  In cross-examination, D1 agreed that the people of the NSC and the State Department were disappointed as they had expected him to come. He said that the purpose of the trip was to lobby for Hong Kong and not for punishment of the Hong Kong officials and the Chinese officials.

597.  However, we note that early in the morning on 27 May 2020, Mark Simon informed[803]:

“NYT Editorial page called over & then sent an email they would like a 600-700 word piece on the implications of the National Security law as well as a few personal notables on ur situation, especially the threat by Global Times to accuse you of subversion.”

A few hours later, D1 put the thoughts from Bill McGurn into a short article which, among other things, contained the following statements[804]:

“Xi’s clampdown on HK’s rule of law and freedom with the new National Security law is just the beginning of his aggression on Taiwan and it’s neighbors in South China Sea, and its aggressive counterattacks on America and the West’s censure on China’s spread of Wuhan virus. … Now is not the time of rhetorics but take actions to sanction and exact punishment to China. … Without changing China’s attitude in its dealings with us, the world will have no peace, given its constant confrontations and frictions with the free world in its deals because its opposing values. It’s time of actions not verbal censures. …

This may even be the best time for America to create a ‘perfect storm’ to wrought the demise of CCP overwhelmed by its worst economic plight ever. …”

Afterwards, D1 supplemented:

“the most effective sanction is to freeze the corrupted money of China’s officials’ bank accounts in the US and the free world.”[805]

“NPC will pass the HK National Security Law draft on Thursday. Now it depends on President Trump’s actions, whether the final law will be passed, stalled or water-downed when NPC resumes meeting again in 2 months, as he said there’d be serious consequences b (sic). It’d better be serious and we HKera (sic) will be saved.”[806]

D1’s speech at the 25th anniversary of Apple Daily

598.  On 18 June 2020, at the celebration of Apple Daily’s 25^th anniversary held in the Next Digital Building, D1 made a speech to its staff, during which he said[807],

“No one will force you people (to do it or tell you people) how to do (it). No on will cause you to (or) force you to become a martyr... I will not tell you people how to do (it). Up to today, as to what Apple Daily has achieved so far, it's attributed to you people('s effort) [applause] ... it has nothing to do with me,huh.”

(「無人會迫你哋點樣去做，無人會使到你要迫你做烈士，… 我唔會叫你哋點樣去做，蘋果日報到今日，做到咁樣樣係你哋造成嘅 … 唔關我事架下…」)

In cross-examination, Cheung Kim-hung disagreed that this statement of D1 was true. Cheung Kim-hung agreed that Apple Daily became what it was because of the effort of all the staff. However, they did this under the leadership and instructions of D1. Cheung Kim-hung agreed that he applauded D1’s speech.

599.  As regards the same occasion, Chan Pui-man said in her evidence that at the time there were worries as to whether Apple Daily could continue to operate. Therefore, it seemed to her that D1 was saying some encouraging words to boost the morale of the staff. It was put to her in cross-examination that even after D1’s remand, he did not say anything about asking other people to hang on, he said that he would hang on but he didn’t say anything about other people. Chan Pui-man answered that according to her recollection, D1 did tell colleagues to hang on.

D1’s enquiry about sanction list

600.  On 23 June 2020, D1 texted Mark Simon and asked whether the news about Wong Yang (「汪洋」) and Hang Zheng (「韓正」) being on the sanction list and the claim about their corrupt money were fake news or corroborated one[808]. Mark Simon said he would check. Later, Mark Simon reverted and said[809],

“Fake news, for now. Wong & Hang are on several lists that HK activist groups have turned in. But our friend at State said She will find out how narrow list has become.

When In DC last week list ideas were discussed. I have put forward only HK officials as someone else was asked to do China for consideration by NSC.”

601.  In cross-examination, D1 said that he did not know who the “friend” was that Mark Simon was talking about, nor did he know which Hong Kong officials Mark Simon had put forward for consideration by the NSC. He said he did not ask Mark Simon and it was not his habit to seek all the details.

The NSL promulgated

602.  On 1 July 2020, the front page of Apple Daily carried the headline: 「惡法生效 兩制蓋棺」(“Evil Law Enacted, One Country Two System Died”). There was a 2-page report spreading over pages A12 and A13 of the Newspaper with a top bar containing the words 「歷史記錄」(“Historical Record”). The report contained caricatures of government officials, photographs of former Chief Executives, members of the Executive Council and Legislative Council, heads of disciplinary forces and so forth. According to Chan Pui-man, the purpose of putting all these pictures, portraits and names there was to keep a record of the members of various institutions about their roles and the impact they exerted during the brewing, promulgation and coming into effect of the NSL.

603.  According to Chan Pui-man, the aforesaid headline was set according to the views of D1. This was because all along D1 had instructed them to reflect his views in their news coverage. When asked to what extent D1’s view would bear on the editorial policy of the newspaper, Chan Pui-man said that if he attached importance to a particular piece of news, sometimes he would give very clear and explicit instructions, saying “Let’s use it” -- “Let’s make it” -- “Let’s give it the largest news coverage.”  Sometimes, he would pass to them the press releases of someone else. Sometimes, just like the occasion on 1 July 2019, he reminded them to give more news coverage to the thoughts of the protestors.

604.  In cross-examination, Chan Pui-man agreed that the contents of the NSL, when known, came as a shock to D1 as they were more detrimental than he had thought. He said to her that “(we) should think out a good strategy to deal with it, and (we) should not be reckless.”[810] Chan Pui-man understood D1 to mean that they, especially editors, needed to change their actions and not to use certain phrases in order to avoid breaching the NSL. Chan Pui-man added that that was why she and some of her colleagues were surprised by D1’s live chat programme which continued after the enactment of the NSL. All the guests he invited to the programme were foreigners. D1 was of the view that the contents of the NSL was even more detrimental than he had expected and therefore he was very concerned. Chan Pui-man understood that he was still harbouring the hope that international pressure, including sanctions, could be of use. Chan Pui-man and her colleagues were worried that the contents of D1’s live chat would have problems with the NSL. In fact, at that time some media outlets were paying attention to D1 and raised concern about his programme. Chan Pui-man went to talk to Cheung Kim-hung as to whether they should discuss the matter with D1. Cheung Kim-hung expressed their concern and worries to D1. Nevertheless, D1 continued with his programme afterwards.

605.  In cross-examination, Chan Pui-man agreed that before D1 was charged with NSL offences on 11 December 2020, she did not consider that what Apple Daily had been doing was unlawful. That was because when the police raided Apple Daily in August 2020, they said they were not targeting at journalistic materials. Moreover, some of the people arrested then, for instance, Andy, were not involved in the operation of Apple Daily. Chan Pui-man also agreed that after the promulgation of the NSL, Apple Daily took steps to avoid being in breach of the National Security Law. On the other hand, as regards D1’s live chat and articles, Chan Pui-man said that even though she and her colleagues did not play any part in their contents, her colleagues had those articles published. At the time, they could not say for certain whether or not those articles were in breach of the law and yet under those circumstances they got published anyway. After D1’s arrest in December 2020, however, Chan Pui-man and Cheung Kim-hung discussed the contents of D1’s live chat. Legal advice was taken and concern was expressed about contents of D1’s Twitter and live chat. The decision was then made to remove those particular posts.  

D1’s knowledge of and response to the NSL

606.  There is evidence that D1 was fully aware of the danger of being accused of collusion, if he continued to openly ask for sanction against Chinese or Hong Kong officials.

607.  On 3 July 2020, in the “Martin, Jimmy and Mark” WhatsApp chat group James Cunningham wrote[811]:

“In these dark days, I came across the following from Benjamin Franklin, about thinking of your “next move”, in an essay called ‘The Morals of Chess’. ‘We learn by chess the habit of not being discouraged by present bad appearances in the state of our affairs, the habit of hoping for a favorable change, and that of persevering in the search’ for advantage. Hard times I know. Best, Jim”

D1 responded[812]:

“Hard time, yes, but this is the time we’re needed most to be the backbone of our cause. We must find ways to go on.”

On 9 July 2020, James Cunningham suggested[813]:

“Yes, let’s work on other ways to go on. How to Limit PRC, and it looks like Lam and company as well, use of the law.”

608.  D1 agreed with Cunningham and asked for his views[814]. Cunningham said[815],

“Good question. I’m thinking about it. Somehow a way needs to be found to create an internationally based protest movement, government and popular, to constrain the HK Govt and the security apparatus. Popular pressure on say HSBC, assets that China values, coupled with coordinated pressure from govts. In the past US could organize that. Not now.”

However, D1 warned[816]：

“The danger of this outside movement is collusion with foreign influence a serious crime under national security law. We can’t be connected with it here. Whatever it’s has to be independent with us.”

609.  To the above, Martin Lee agreed[817]. He advised that the NSL was effective until set aside, and all the people of Hong Kong were subject to it. So, they must not do anything that was caught by it. Moreover, that applied to any WhatsApp or other groups that they belonged to. In response, Cunningham said he did not see that the law would be set aside. Therefore, it was prudent to assume that any “infraction” might be pursued for political reasons. So they needed to try to narrow that field, and he urged not offer easy targets.[818] Martin Lee further advised that therefore the group must not, under any circumstances, do anything which would constitute an offence under this Law.[819]  Mark Simon said “Group remains active”[820] and D1 said, “Ok” and thanks[821].

610.  As it turned out, however, there were in fact no further messages in this chat group after that last message from D1.

D1’s change of stance on Hong Kong’s special status after the NSL

611.  Prior to the enactment of the NSL, D1’s stance was that the US should not revoke the special status of Hong Kong. Yet, his stance changed after the enactment of the NSL. This is evident by the following.

612.  On 14 July 2020, President Trump of the US issued the Executive Order EO 13936[822]. Section 1 of EO 13936 provides:

“It shall be the policy of the United States to suspend or eliminate different and preferential treatment for Hong Kong to the extent permitted by law and in the national security, foreign policy, and economic interest of the United States.”

613.  On 15 July 2020 at 8:14 pm (HKT), Mark Simon referred to D1 a query from “Mary” asking whether D1 had said that he preferred the US not to break all ties with Hong Kong[823]. In his evidence, D1 said this “Mary” was Mary Kissel. D1 replied to Mark Simon[824],

“I said that it’s not necessary to revoke the special status of HK because with national security law HK is finished anyway. The point is not HK but China. Sanction China as to stop it from clamping down on HK. But after I thought about it I think they’re right to revoke HK’s special status, because once US and China decoupled HK would be a way out for China. To close this outlet of China would force it to come to term easier to demands of US.”

614.  In his evidence, D1 said that he agreed to the proposal to revoke the Hong Kong special status because it did not matter anymore. He wanted Mark Simon to convey his idea back to Mary Kissel.

Trump’s Executive Order

615.  On 14 July 2020, President Trump of the US issued Executive Order 13936 (“EO”).

616.  According to the expert opinion of Professor Wang, the EO can be regarded as sanction provisions to fulfil the sanction requirements under the Hong Kong Autonomy Act (“HKAA”). A feature of EO 13936 is that it suspended the application of several statutes that provided Hong Kong with special treatments[825]:

•  Section 1 provides a brief description on the EO:

“It shall be the policy of the United States to suspend or eliminate different and preferential treatment for Hong Kong to the extent permitted by law and in the national security, foreign policy, and economic interest of the United States”.

•  Section 2 lists out the concerned US statues which gave Hong Kong special treatments in relation to immigration, visa application, international defence cooperation and military export controls, export control, and marking of imported articles and containers.

•  Section 3 requires the heads of the US Government agencies to commence all appropriate actions, within 15 days of the date of the order.

•  Section 4 stipulates the imposition of blocking sanctions against all property and interests in property that are in the United States, that hereafter come within the United States, or that are or hereafter come within the possession or control of any United States person, of the persons sanctioned.

•  Section 6 prohibits (a) the making of any contribution or provision of funds, goods, or services by, to, or for the benefit of any person whose property and interests in property are blocked and (b) the receipt of any contribution or provision of funds, goods, or services from any such person.

•  Section 7 suspended the unrestricted immigrant and nonimmigrant entry to the US of persons who were subject to sanction, their immediate family members, employees and agents.

•  Section 11 provides that there is no need to have any prior notice to the persons subject to section 4 sanction as it would render those measures ineffectual.

617.  It is pertinent to note at this juncture that, pursuant to EO 13936, on 7 August 2020, the US treasury imposed sanction on 11 individuals (officials of the PRC and the HKSAR) for “undermining Hong Kong’s autonomy and restricting the freedom of expression or assembly of the citizens of Hong Kong”. It is the expert opinion of Professor Wang that after the enactment of the Hong Kong Autonomy Act and issuance of the EO 13936, between 7 August 2020 and 16 July 2021 the US Government took numerous actions including: required changes in markings of the goods produced in Hong Kong, suspension and termination of bilateral agreements, and sanctions imposed on a number of individuals of the PRC and the HKSAR Government[826].

Apple Daily reporting of the revocation of Hong Kong’s special status and the “US Sanction List”

618.  On 15 July 2020, D1 forwarded to Chan Pui-man a message about Trump’s EO relating to actions taken by the US against the PRC and Hong Kong.[827] In that message, a “shit list” was mentioned.

619.  On 16 July 2020, there was a report on the front page of Apple Daily carrying the headline: “Freedom deprived” “Same as mainland China” “Trump revoked Hong Kong’s special status”. At the bottom of the page, there was also a headline saying, “Secretary of State to submit sanction list within 90 days”[828].

620.  On 17 July 2020, on the front page of Apple Daily were reports carrying the headlines, “US Sanctions List” “Han Zhang” “Lam Cheng” “PK Tang are on the list” and “Trump has something up his sleeve. Scale of strike will be escalated anytime”. At the centre of the page, there was a subtitle which said, “Scholar: Influence European countries’ and Japan’s punitive measures”.[829] At the time, as the report said, sanctions had yet to be imposed. According to Chan Pui-man, D1 was very concerned about the sanction list. In cross-examination, Chan Pui-man agreed that the names of the persons to be sanctioned, as the report itself said, actually came from Bloomberg.

621.  Also on 17 July 2020, there was a lunchbox meeting chaired by D1 and attended by staff members from the Print Form. As Cheung Kim-hung was away, Chan Pui-man was responsible for making a record of the key points. Item 2 of the record said[830],

“Can think over the wording, the red line set by the National Security Law is vague, follow your own conscience and journalistic principles to report”

Item 3 was a suggestion from D1 about inviting foreign writers to submit articles for publication. On the same day, there was the following statement in D1’s personal Twitter account: “#HongKong #SafeHarborAct and #PeoplesFreedomandChoiceAct are good wherewithals to our resistance movement. Salute all former CGs and State Dept staff for caring about this place we call home.”[831]

622.  On 23 July 2020, there was a news report in Apple Daily of the meeting between Pompeo and Nathan Law in London with the title: “Saying that the CPC’s falling knife is equivalent to serious fraud/ Law Kwun-chung met with Pompeo calling for counter-measures against DQ”. The head bar of that page contained the words, “Coffin shut for the Two System”. [832]

D1 received beforehand Pompeo’s speech at Nixon Library

623.  There is evidence that, before Secretary Pompeo delivered his anti-China speech at Nixon Library on 24 July 2020, D1 had been given a draft of that speech.

624.  Earlier that day, Christian Whiton forwarded to D1, Mark Simon, Paul Wolfowitz and Jack Keane a document titled “EMBARGOED until 4:35 ET: Secretary Pompeo remarks at Nixon Library”[833]. In that document, an appeal was made to other countries to act together with the US in confronting China. It said, among other things, the following[834]:

“The old paradigm of blind engagement with China has failed. We must not continue it. We must not return to it.

…

The truth is that our policies – and those of other free nations – resurrected China’s failing economy, only to see Beijing bite the international hands that fed it.

…

Let’s not repeat the same mistakes of the past. The challenge of China demands exertion from democracies… those in Europe, in Africa, in South America, and especially those in the Indo-Pacific region.

If we don’t act now, ultimately, the CCP will erode our freedoms and subvert the rules-based order free societies have built. If we bend the knee now, our children’s children may be at the mercy of the CCP, whose actions are the primary challenge to the free world. Xi isn’t destined to tyrannize inside and outside of China forever, unless we let him.

This isn’t about containment. It’s about a complex new challenge we’ve never faced before: The USSR was closed off from the free world. Communist China is already here, within our borders.

So we can’t face this challenge alone. The UN, NATO, the G7, the G20, our combined economic, diplomatic, and military power is surely enough to meet this challenge, if directed properly.

Maybe it’s time for a new grouping of like-minded nations…a new alliance of democracies.

We have the tools. Now we need the will. To quote Scripture, I ask is “our spirit willing but our flesh weak?”

If the free world doesn’t change Communist China, Communist China will change us. There can be no return to past practices just because they’re comfortable, or convenient.

…”

625.  Later that day, Pompeo delivered the speech in almost identical terms to his speech at Nixon Library[835]. As can be seen in due course, Pompeo’s said speech was covered extensively in D1’s tweets in his personal Twitter account on 24 July 2020[836].

626.  The speech was also made the front-page news of the Print Form of Apple Daily on 25 July 2020[837] with the headlines: “Pompeo announces failure of 50 years of China policy at Nixon Library”; “US calls on free world to defeat new tyranny”; and “Beijing blasts Cold War mentality (and) political lies”.[838]

D1’s tweet on 8 August 2020 about Returning Officers

627.  On 8 August 2020, Apple Daily reported that 11 mainland and Hong Kong officials were sanctioned by the United States for alleged suppression of democracy. [839] 

628.  On the same day, there was a tweet in D1’s Twitter account referring to the news and asked, “How about those election officers (「選舉主任」) who disqualified #DQ the candidate nominations? Should they be personally responsible for making the decision?”[840]  That was referring to the disqualification of certain candidates from the pan-democrats for the 2020 Legislative Council election.

Intended private prosecution of expatriate police officers

629.  On 10 August 2020, D1 forwarded to Chan Pui-man a message together with a press release which, he said, was from “Luke”.[841] The message said,

“Hi Jimmy. Please do pass this on. Thank you. We need all the help we can get on this!! I want those cops to answer for their crimes in the UK. The evidence is good.”

630.  The press release[842] was marked “EMBARGOED UNTIL 10 AUGUST 2020 17:00 HKT” and its subject read,

“INTERNATIONAL COALITION CONCLUDES SENIOR BRITISH EXPATRIATE POLICE OFFICERS IN HONG KONG HAVE A CASE TO ANSWER FOR TORTURE; PROCEEDS WITH PRIVATE PROSECUTION CAMPAIGN; APPEALS FOR FURTHER WITNESS TESTIMONY;

LAUNCHES LEGAL FUND.”

Its first paragraph read,

“LONDON, U.K. An international coalition of activists and lawyers including Hong Kong Watch Fellow Luke de Pulford and former Hong Kong Legislative Councillor Nathan Law have concluded the initial phase of their investigation into senior, high-profile British expatriate officers in the Hong Kong Police Force (HKPF) and intend to proceed with a private prosecution in the U.K. against the officers concerned on charges of torture.”

At the end of the press release, there was a link to a crowdfunding website. There were also photographs of Luke de Pulford (described as “Case commissioner”), Nathan Law and Michael Polak (described as Legal Counsel).

631.  Although D1 asked Chan Pui-man to decide for herself, she regarded it as an instruction. Therefore, she told her colleague to write a report on it. The contents of the press release was reported on 11 August 2020 in Apple Daily with the headline: “International Team (seeks) to Prosecute Hong Kong Police Officers with British Nationality through Crowd-funding” (「國際團隊眾籌控英籍港警」). That report also provided the website link to the crowdfunding platform used for fundraising for the private prosecution [843].

D1 helping Yuen Gong-yi regarding his video letter to Trump

632.  On 28 May 2020, Yuen Gong-yi (“Elmer Yuen”) texted D1 by WhatsApp and said that he wanted to make a public video letter to Trump and Pompeo, urging them to station an UN humanitarian force in Hong Kong to protect the youth. He asked to make the video in D1’s studio on the following Friday. He told D1 that “It’s war”. D1 replied that he could arrange his colleagues to do that for Yuen and that his chief Nick would contact Yuen for the arrangement. Yuen thanked D1 and said that he would propose to Trump to kick PRC out of UN, and station UN troop in Hong Kong to protect the Hong Kong people and their freedom until the next dual universal suffrage.[844]

633.  On 1 June 2020, Elmer Yuen’s video letter to President Trump was uploaded in Apple Daily online platform: “US urged to take in Hong Kong’s defiant students to preserve ‘seeds of new China’ ”[845]. In that letter, he said, among other things[846]:

“The Chinese Communist Party (CCP) are staging a world class deception to suck up trillions of US dollars while dress Hong Kong up as an autonomous and legitimate city. Please recall your investment bankers from Hong Kong. Your US capital will be put into better use at home than to grow cancers in China and then spread to the rest of the world through the One Belt One Road initiative. You should sanction all these Communist entities from getting any more US capital.”

634.  On 3 June 2020, Elmer Yuen texted D1 and thanked the latter for providing him the platform to start his mission to destroy the CCP. He informed that he would go to Washington to plead for help for Hong Kong from the White House. He enquired whether D1 had any suggestions or whether there was anything D1 would want him to do[847]. D1 replied he did not have any suggestions better than what Yuen had thought of[848].

D1’s interviews by Fox

635.  Besides the occasion in July 2019 when D1 was in the US, he was also interviewed by Fox News on the following occasions:

(1)  18 August 2019

(2)  26 May 2020

(3)  1 July 2020

(4)  1 December 2020

(1)  18 August 2019

636.  On 18 August 2019, D1 messaged Chan Pui-man and informed her that he was going to attend an interview with Fox. He asked her to “briefly explain the ins and out of Cathay Pacific’s kneeling down”.[849]  The title of that interview was: “Jimmy Lai on Hong Kong: It is everybody’s responsibility to fight the dictatorship”.[850] As it turned out, however, the Cathay Pacific matter was not referred to during the interview.[851]  In that interview, as regards the Extradition Amendment Bill, D1 said that President Trump had already linked the movement in Hong Kong with the trade negotiation, which was “very good”[852]. He also reiterated the view that[853]:

“We are actually fighting the same war, your new Cold War. We are fighting part of it because we share the same values with you. So it’s very important for you to uphold the values we are fighting. You know that’s obligation and interest of you America to help us.”

637.  The interview was also reported in the Digital Version of Apple Daily on 18 August 2019 with the heading: “Anti-ELAB Movement”[854]. The report said, “When interviewed by Fox TV, Lai Chee-ying praised US for linking the anti-ELAB to the trade war: US should help Hong Kong people fight”.

(2)  26 May 2020

638.  On 26 May 2020, D1 was interviewed by Maria Bartiromo of Fox News[855]. He was asked by the interviewer how he was going to get the CCP to change. D1 answered, “Sanction them. Freeze the account of the officials’ corrupt money in US, in the world. Sanction their technology products or stop sending technology product to China. …”[856]

639.  On 27 May 2020, Jack Keane emailed D1, Mark Simon, Paul Wolfowitz and Rupert Hammond-Chambers[857] and said, “Your explanation of why you do it, displaying your dogged determination and courage to “fight” the CCP is riveting.”  To this, D1 replied on the same day:[858]

“General,

It’s so kind of you. Your help at this time is crucial. With the HK National Security act clamp downed on us we’ve no way out but help from America, especially President Trump.

Thanks. Jimmy”

(3)  1 July 2020

640.  Although the provisions of the NSL were more draconian than D1 had thought, that did not stop him from accepting interviews from foreign media with a view to seeking support for his course from foreign government.

641.  On 1 July 2020, D1 gave a live video interview to Fox News hosted by Maria Bartimoro[859]. After that, D1 sent a Signal message to her saying, “Thanks for having me just now. It’s great for me to talk to American people. We need all the help from America. Cheers. Jimmy.”[860]

642.  On the following day, D1 texted Mark Simon and said that he thought he should continue to accept interviews. Mark Simon replied, “Will do” and told D1 that they had a request from BBC and Guardian.[861]  Mark Simon also told D1 that “Mary” and her boss watched the Maria interview, as did Bill Barr[862]. He related Mary’s message that there was an important request “from top” in that they wanted to see the Cardinal who was considered to be the figure that would resonate across all party lines. D1, however, did not think that the Cardinal wanted to travel. Mark Simon said that he was told the same by the Cardinal and that they had to find a way to get someone with gravitas to “DC”[863].

(4)  1 December 2020

643.  On 1 December 2020, D1 was interviewed by Maria Bartiromo for a third time[864], during which he said[865],

“Well, a lot of people say that the Democrats, Biden, they talk a- -- they, they are more concerned about human rights. I hope the Biden administration will attach human rights, especially, the rule of law and, and, and, and the, and the freedom and also the human right in, er, in Xin-, in Xinjiang, as the precondition of any negotiation they have with China. You know, they will have to renego- renegotiate the, you know, the, the trade deal and I, I hope that they put us as a precondition to the Chinese to give us back the real -- the rule of law and freedom as a precondition.”

Chapter 17 – Senior Management’s Response to the NSL

Introduction

644.  There is evidence that after the promulgation of the NSL, the senior management of Apple Daily had taken some steps to avoid breaching the new law.  

645.  The efficacy of those attempts in exonerating any of them would hinge on whether, after the enactment of the NSL, there was in existence the agreement charged and whether knowledge of the legality or otherwise of the agreement was an element of the offence or whether it would afford them a defence. The aforesaid questions will be dealt with in other parts of this verdict. At this juncture, we are just dealing with the evidence.

The NSL approaching

646.  On 21 May 2020, Chan Pui-man forwarded to D1 a report of HK01 with the headline: “[01 Exclusive] NPC to announce the Hong Kong National Security Law tonight to close loopholes in national security Different from Article 23”[866]. She also told D1 that there would be a press conference at 9:45pm that night[867]. D1 responded vulgarly, “Damn it, it’s coming!” (「仆街打到嚟喇！」)[868]. It was Chan Pui-man’s evidence that in fact from about May 2020 to 1 July 2020, there were news in Hong Kong about the NSL and the steps taken by the NPC and NPCSC to enact the new law. The news were also covered by Apple Daily.

“NSL Response Committee”

647.  On 22 June 2020, Cheung Kim-hung opened the WhatsApp chat group “NSL Response Committee” (「國安法應變委員會」)[869], members of which included himself, Chan Pui-man, Yeung Ching-kee, Lam Man-chung, Chiang Mei-hung and Law Wai-kwong. At a later stage, “Lo Fung” (i.e., Fung Wai-kong), Wong Wai-chun (deputy editor-in-chief of the Hong Kong news section) and Chow Ping-wah (deputy editor-in-chief of the breaking news section) were also added to the group. However, it was a deliberate decision of Cheung Kim-hung not to include D1 as a member and Cheung Kim-hung believed that D1 did not know that he had opened the chat group. In re-examination, Cheung Kim-hung said that if D1 had been added to the chat group, then they would not have been able to discuss anything, as only D1’s words would count.

648.  Cheung Kim-hung explained the reasons for the creation of the group as follows. At the time, the NSL was about to be enacted and therefore colleagues had a lot of queries or questions concerning this legislation, as well as its impact on their work. There were feedbacks from some sections saying that some colleagues were concerned and were wondering whether they should resign or not, in particular those in the Hong Kong news section and the breaking news section. Therefore, Cheung Kim-hung and Chan Pui-man decided to set up this “NSL Response Committee” chat group in the hope that they could discuss the impact of the NSL, concerns of colleagues and where the red line should be drawn.

649.  Similarly, it was also Chan Pui-man’s evidence that D1 was not included so that the discussion could be conducted more freely. Otherwise, D1’s opinion would be dominating and the chat group would not be a forum of discussion. Her understanding was that Cheung Kim-hung would like members to come up with some kind of consensus, so that he could relate the same to D1.

650.  Later, because of the sensitivity of the topics and discussions, at the suggestion of Lam Man-chung, on 2 July 2020 the chat group was moved from WhatsApp to Signal, which had the messages on auto-delete function.[870] Apart from some messages which had been screen-captured by Yeung Ching-kee, the Signal messages before 17 June 2021 (the date of arrest of Cheung Kim-hung and others) had been deleted.

651.  Cheung Kim-hung’s attention was drawn to the discussion in the chat group on 30 June 2020 which was about whether they should add the logo of Apple Daily on the posters for distribution in the street booth of Democratic Party[871]. These posters were supposed to be distributed on the first day of July during the course of the procession at the Democratic Party street booth. D1 asked that the logo of Apple Daily be added to the posters. Because of the sensitivity of the matter and that the NSL was looming, Cheung Kim-hung had a discussion in the chat group. At that time, the concern was that if those posters were distributed in the street booth of the Democratic Party, then one might wonder whether the connection between the news outlet and the political party would be too close, as the poster was about resistance. Eventually, despite the disagreement of several members in the senior management, the logo of Apple Daily was added to that poster.

652.  In cross-examination, Cheung Kim-hung said further that all along they had been working according to the editorial policies set down by D1, that means prior to the promulgation of the NSL. After the promulgation of the NSL, D1 kept mentioning that he would not be scared and he would continue to put up resistance. Therefore, D1 started his live chat programme and continued to say what he would like to say. As for the senior management of Apple Daily, they were very worried as to the effect or the impact of the NSL on the news outlet and that was why they set up those WhatsApp chat groups such as the “NSL Response Committee” and the “Newspaper Sensitive Advertisements” (「報紙敏感廣告」) group and so forth. It was also the reason why they organised some legal seminars for the staff members of both the assignment desk and others in the hope that colleagues could operate as much as possible within the red line[872]. After D1 was remanded in custody in December 2020 and was charged under the NSL, they removed some sensitive articles written by him as well as his video footages from the platform. From that point of time up to the time Cheung Kim-hung made the affirmation for bail application, they were hoping that Apple Daily could operate while at the same time complying with the relevant laws and legislations.

After the NSL had arrived

653.  Cheung Kim-hung was asked about his WhatsApp exchanges with D1 in the morning on 1 July 2020. Cheung Kim-hung agreed that D1 was shocked by what he read about the NSL. D1 said that “First, we need to figure out a good strategy to deal with it, and we should not be reckless.”[873] Cheung Kim-hung agreed that D1 meant not to be reckless in order to avoid violating the law. Cheung Kim-hung also agreed that the editors also became more cautious about the National Security Law, because they had no idea where the red lines lay.

654.  In cross-examination, Cheung Kim-hung was referred to the following discussions among the senior management[874].

(1)  The WhatsApp exchanges between Cheung Kim-hung and Chan Pui-man on 4 July 2020 regarding an advertisement containing the slogan “Liberate Hong Kong, Revolution of Our Times”[875]. Eventually, the slogan was removed from the advertisement to avoid breaching the NSL.

(2)  On 3 August 2020, Cheung Kim-hung messaged Yeung Ching-kee and said[876]:

“Ching Kee, a number of individuals overseas are alleged of violation of the National Security Law and wanted by the government. If they submit articles for publication, it is inconvenient for us to make payment for the articles. The contents of course will be checked strictly according to the original guiding principle.”

Cheung Kim-hung explained in Court that earlier that day he had a telephone conversation with D1, during which he sought instructions from D1 as to how to handle articles contributed by those people in exile or on the wanted list. D1’s instructions was that those writings could be published as usual. However, they should refrain from giving them any royalties for the fear that somebody would make a mountain out of a molehill by accusing them of subsidising those writers. D1 thought it would be alright just allowing their writings to be published in their platform, as he was of the view that such people would get the sympathy of Hong Kong people and they could still speak up for Hong Kong even though they were overseas.

(3)  On 9 March 2021, there were WhatsApp exchanges between Cheung Kim-hung and Nick Cheung concerning Benny Tai’s article “Ten Steps to Real Mutual Destruction”[877]. Nick Cheung said that this article was searched by quite a lot of people lately and he asked whether it should be “taken off the shelf”. Cheung Kim-hung answered in the affirmative.

655.  On the other hand, even after the promulgation of the NSL, D1’s articles in “Sink or Swim, Smile” and his live chat remained available on Apple Daily’s platform until after D1 was charged under NSL in December 2021 when thereafter they were taken down.

Contingent Group (「應變小組」)

656.  On 16 April 2021, Apple Daily had on its front page a report: “TANG Ping-keung intimidates the media: (Violators) of the NSL will pay the price” “Editor-in-Chief of Apple Daily suspects that (he) is paving the way for severe suppression”.[878]  The “Editor-in-chief” referred to was Law Wai-kwong.

657.  On 17 April 2021, there was another WhatsApp chat group created by Cheung Kim-hung named “Contingent Group”[879], members of which included Cheung Kim-hung, Chan Pui-man, Nick Cheung and Law Wai-kwong. In cross-examination, Cheung Kim-hung said that D1 was not included in this chat group because he had already been detained since December 2020. Cheung Kim-hung disagreed with leading counsel that D1 was not added to it because editorial decisions were left to the editors and D1 did not take part in those.

658.  According to Chan Pui-man, the group was created in response to the remarks made by the police force concerning seditious words or phrases. They would like to have some discussions on the wordings of the newspaper and whether any change needed to be made to the approach of news reporting, as some colleagues also queried whether they should continue to use such terms like “Wuhan pneumonia”. They would not want the Print Form and the Digital Form to have different judgments and conclusions. Cheung Kim-hung said that he would have a discussion with Law Wai-kwong and came to an agreement.[880]

659.  On 17 April 2021, Cheung Kim-hung told Yeung Ching-kee that he had spoken with Ngan Shun-kau that given the situation then, phrases like “black cop” had better be avoided and Ngan asked them to assist by doing the checking. Cheung Kim-hung said he would ask Yeung Ching-kee for help[881].

660.  On 18 April 2021, Chan Pui-man texted Yeung Ching-kee and informed that Law Wai-kwong had decided to “defeat my yesterday’s self” and directed that the term “Wuhan pneumonia” was to cease to be used and replaced by “pandemic” or “covid-19” in all reports and editorials. As regards Apple Forum, she told Yeung Ching-kee that it was up to the individual writers to decide.[882] Yeung Ching-kee recorded the above instruction in a document which the Police found in his computer[883].

661.  Between 17 and 18 April 2021, there was a chain of exchanges in the “Contingent Group” (「應變小組」) chat group as to whether terms such as “castration of election” and “Wuhan pneumonia” should cease to be used in Apple Daily and be removed from its website[884]. Eventually, Cheung Kim-hung gave the instruction:

“If you can interview, interview. If you can expose, expose. Report the truth with conscience. Only to avoid some terms. These terms used to be fine in the past. Time has changed. Everyone, all understand it is important to keep a voice. It is unnecessary to confront directly.”[885]

In cross-examination, Cheung Kim-hung explained that in April 2021 the situation was getting difficult, as there were remarks of government officials targeting Apple Daily. There were also rumours that Apple Daily would not survive after July. Given the situation, Cheung Kim-hung visited D1 (in custody) around late April and sought instructions from him. In particular, D1 was told if Apple Daily should be closed down on its own given the worries of other colleagues. Also, it happened that a columnist, Chip Tsao (「陶傑」), had written in the supplement suggesting that it would be better for Apple Daily to close itself down. D1 said to Cheung Kim-hung, “Why should we close it down ourselves? Why don’t we continue until it is closed down by others?”  Against this background, they cautiously carried on running the newspaper. This led to the subsequent meeting of Apple Daily hosted by Cheung Kim-hung on 11 May 2021. Cheung Kim-hung agreed with counsel that the editorial direction of Apple Daily had to change according to the change in law and the situation. On the other hand, in re-examination Cheung Kim-hung said that as far as he could see, there was not any substantial change in the editorial policy of Apple Daily before and after the NSL.

662.  On 21 April 2021, Cheung Kim-hung asked Yeung Ching-kee by WhatsApp whether there had been requests in the Editorials for foreign countries to impose sanctions or even to overthrow the ruling party. Yeung Ching-kee replied that after the promulgation of the NSL, even “the boss” made no such remarks. Cheung Kim-hung replied by saying “Right”[886]. Cheung Kim-hung explained in Court that after the NSL had come into effect, the writing or expression of D1 was less explicit compared to what he wrote and said in the interviews before. On the other hand, D1’s writings and views expressed after the NSL in fact affirmed the effect of foreign sanctions in preventing China from clamping down human rights, democracy and freedom in Hong Kong. Therefore, when Yeung Ching-kee said that D1 no longer said anything explicit about sanctions, Cheung Kim-hung agreed with Yeung Ching-kee.

663.  On 25 May 2021, Yeung Ching-kee was told by Law Wai-kwong that there was a letter from D1 which Law wanted to show to Yeung Ching-kee[887]. Yeung Ching-kee said that he was shown that letter by Law. That letter was addressed by D1 to Law in which D1 said that they needed to be careful. However, Yeung Ching-kee could not remember the exact wordings of that letter.

Not inviting Sang Pu (桑普)

664.  On 21 April 2021, Chan Pui-man messaged Yeung Ching-kee and said that the boss, i.e., D1, suggested to invite Sang Pu to write for Apple Forum.[888] Chan Pui-man said that she was told by Cheung Kim-hung about D1’s suggestion. Yeung Ching-kee’s response was that “His article is a bit weird and he openly advocates Hong Kong independence therefore I dare not set up a column for him.”  At the end of the day, Cheung Kim-hung did not invite Sang Pu to contribute articles because of legal considerations.

Cheung Kim-hung’s speech on 11 May 2021

665.  On 11 May 2021, Cheung Kim-hung gave a speech to the staff members of Apple Daily[889]. In that speech, in response to the news that Apple Daily would cease operation, he told the staff members:

“(We) definitely do not have a plan to evacuate the employees. Definitely not ... [applause] Why do we need to do so(?) We haven't committed any crime, haven’t committed any crime. We're not a criminal organization, right? We report news, we don't need closure, don’t need to evacuate our staff. Why do (we) need to do so? Definitely no such thing. News as usual. Business as usual. Huh, just remember, there is no such, there is no such thing. Upon hearing (that), don’t believe (it). All along, the company has in fact tried to do its best all along, hoping that we do not, that is, (we) completely abide by the law.”

“You may ask, will the law be tightened? No idea. By the time that (it) is tightened, we’ll just further adapt!”

“Last month, Mr Lai wrote a letter from prison, all of you must have read (it), that is, the jobs concerning press freedom are dangerous. Every colleague must take care and be as cautious as possible.”

“…now Apple Daily may be under scrutiny by someone using a magnifying glass, all of us really need to be careful with everything. Well, I also ask (our) colleagues to try (our) best to refrain from being emotional regarding a lot of stuff, the news. (I) don’t want (our) emotions to be reflected in (our) news. This doesn’t mean we are conceding. We will never concede. There is no room for Apple Daily to concede.”

666.  In cross-examination, Cheung Kim-hung said that he was quoting from D1’s letter written in prison: “Jobs concerning press freedom are risky. Every colleague must take care and be as cautious as possible”. Cheung Kim-hung said that this was what he believed at the time.

667.  Chan Pui-man was also cross-examined on the aforesaid speech of Cheung Kim-hung. She said that she agreed with what Cheung Kim-hung said on that occasion which was also her belief at the time. Chan Pui-man agreed that when Cheung Kim-hung said that Apple Daily “would never concede”, what he meant was that whilst Apple Daily would not change its angle of reporting, it would do so within the confines of the law.

Chan Pui-man’s appointment as director

668.  On 20 August, 2020, Chan Pui-man was appointed to the position of director of two companies, namely Apple Daily Limited (D2) and Apple Daily Printing Limited (D3).

669.  Chan Pui-man said that at the time, some members of the senior management who were responsible for managing the financial matters of the company either got arrested or invited for the purpose of investigation and the accounts department was at a loss. They were wondering what if there would be no one to sign cheques, and then there would be no means to pay writers for their articles. Therefore, the company appointed several of them (including her and Law Wai-kwong) to the board of directors, so that should anything happen there still would be someone to sign cheques. Yet, after the aforesaid appointment, no regular meetings were ever held for the Board of Directors of Apple Daily.

670.  On 17 June 2021, Chan Pui-man was arrested for the present case and the news was reported on the following day in Apple Daily.[890] After her release on bail, on 21 June 2020 she formally tendered her resignation to Apple Daily but she stayed in the job until 24 June 2021, which was also the date of Apple Daily’s last issue.[891]  Her resignation from the directorship of D2 and D3 took effect on 25 June 2021.

Chapter 18 – Advertisement/ Crowdfunding campaigns & SWHK

Advertisement/Crowdfunding campaigns

Introduction

671.  During the period between June 2019 and May 2020, there were the following newspaper advertisement campaigns:

(1)  the “G20 Campaign” in late June 2019;

(2)  the “JD Campaign” in July 2019;

(3)  the “G Fry” Campaign in August 2019; and

(4)  the “Rise from Ashes” Campaign in May 2020.

The above were funded by crowdfunding through online platforms. Andy was involved in the first three newspaper advertisement campaigns to which, the prosecution says, D1 advanced “bridging loans” with Mark Simon and Wayland as go-betweens.

672.  It needs to be stressed that the newspaper advertisement/crowdfunding campaigns are not the subject matter of any of the charges in this trial and D1 is not charged with his role, if any, in any of those. They were only the background which, the prosecution says, led to the formation of SWHK, the activities of which were alleged to be part of the overt acts of the conspiracy in Charge 3.   

The G20 Campaign

Introduction

673.  Andy said that he came to know Wayland through a Telegram (“TG”) chat group in June 2019. At the time, Andy was known by his TG display name “RIP”, whereas Wayland was known by the display names “Honey T Milk” or simply “T”.

674.  By way of background, in 2019, the HKSAR Government introduced proposed amendments to the extradition law. The proposal aroused a wide spread opposition from various sectors of the society. It happened that there was a G20 Summit to be held in Japan by the end of June that year. There were then discussions in various TG groups about arousing awareness of and obtaining support from the international community of the movement and protests against the Extradition Law Amendment Bill (“ELAB”). Andy was among those who came up with and subsequently also implemented the plan of placing advertisements in foreign newspapers to solicit international support against the ELAB.

Advertisements placed

675.  Eventually, those advertisements were placed between 27^th June and 29^th June 2019 in the following:

•  The UK - The Times[892]; The Guardian[893]

•  United States - the Washington Post[894]; the New York Times (International)[895]; the New York Times (US) [896]

•  Germany - Süddeutsche Zeitung[897]

•  Taiwan - Apple Daily (Taiwan) [898]

•  Japan - the Asahi Shimbun[899]; the Japan Times[900]

•  Australia - the Australian[901]

•  South Korea - Chosun Ilbo[902]; Hankook Ilbo[903]; Dong-A Ilbo

•  Canada - the Globe and Mail[904]

•  Belgium - Politico Europe[905]

•  Spain - El Mundo[906]

•  France - Le Parisien[907]; Le Monde[908]

•  Italy - Corriere Della Sera[909]

•  Sweden - Dagens Nyheter[910]

Andy seeking a “bridge loan”

676.  Andy played an active role in the campaign. Apart from placing the orders and keeping the accounts[911] and other records of the advertisement campaign, he also set up a webpage on “GoGetFunding” (a crowdfunding platform) to raise funds for the campaign and even provided an advancement of about HK$3 million to the campaign out of his own pocket.

677.  Eventually, the crowdfunding campaign succeeded in raising about HK$7 million. After deducting the fees for GoGetFunding and Stripe (the payment platform), the balance was around HK$6.1 million. However, the fund raised was not yet available at the time the costs of the advertisement needed to be settled. By which time Andy had already exhausted his ability to bridge. Therefore, he appealed to the people in the TG groups for help. At this juncture, “T” approached him through private chat and offered assistance.

678.  According to Andy, “T” asked how much would be required and said he would think about some options. “T” also mentioned that he had asked some “uncles” or other people, a sum of around HK$5 million could be utilised. Andy understood that that was a loan which needed to be repaid. At the request of “T”, on 26 June 2019 Andy emailed a letter to “heyderic@yahoo.com” copied to “e.pigeon@hotmail.com”[912]. On the following day, he emailed another letter to “e.pigeon@hotmail.com”[913]. The contents of the two letters were essentially the same and both of which set out the background of the crowdfunding and the request for an advancement for payment of advertisement. Now, there is little dispute that “e.pigeon@hotmail.com” was in fact an email address used by Wayland.

Wayland contacting Mark Simon

679.  According to Wayland, he saw in TG the “G20 High Seas Group” a “pinned post” by “RIP” who was seeking funds for an international advertisement campaign. Believing that “RIP” was the administrator of the chat group, Wayland contacted him and was told that the purpose of the campaign was to take the opportunity of the G20 summit to draw international attention to the anti-ELAB movement and the situation in Hong Kong then. “RIP” said that although the crowdfunding had already reached its target, the fund raised was not yet available. It happened that there were suggestions made in the TG chat group that one might seek financial assistance from D1 and through the intermediary of Martin Lee. Wayland managed to obtain the phone number of Martin Lee from the chat group and got hold of him. He told Martin Lee that a “bridge loan” of HK$3 million from D1 would be required. Subsequently, Martin Lee reverted and informed that D1 already knew about the matter. As D1 was not in Hong Kong, Wayland was given the phone number of D1’s assistant Mark Simon and was asked to contact the latter directly.

680.  Wayland said that he contacted Mark Simon right away. He told Mark Simon the problems encountered and said that a bridge loan was needed so that the advertisements could be placed before the G20 summit. Mark Simon said that he roughly knew about the matter and that Wayland was not the first one who contacted them. Mark Simon also said that he was willing to co-operate as Wayland was able to articulate his request clearly. Mark Simon added that the campaign was fully in line with their political propositions and they hoped that through this activity, the government would respond to the people’s demands. Mark Simon also said that he would contact his boss, but he did not say who his boss was. At the time, Wayland was yet to tell Mark Simon how much he needed for the “bridge loan”.

$5 million “bridge loan”

681.  Wayland said that about 10 to 15 minutes after his first call to Mark Simon, the latter reverted and said that there was no problem and that a sum of up to $5 million could be made available but that had to be repaid. Mark Simon said that “Jimmy” was willing to provide all sorts of help to support this kind of publicity literature activities. Mark Simon said that he would pay the newspapers concerned directly upon invoices. He said also that if advertisements were to be placed on newspapers under the Apple Daily Group, then payment could be made after the advertisements. Later on the same day, Wayland informed “RIP” of the news and the method of advancement. Wayland further told “RIP”,

“If you during the advertising campaign or international front needed any assistance, I could contact Lai Chee-ying and Mark Simon again.”

682.  That D1 was informed of the “bridge loan” and its purpose and that he in fact approved it was shown by a WhatsApp message that Mark Simon sent to him on 26 June 2019, which read[914],

“Jimmy, I just heard from Martin.

The fundraising for the newspaper ads has one major problem. They don’t have access to all the funds until July 2. As such Martin is asking if we can do a bridge loan of Hong Kong dollar 5 million to the group.

We would get our money back by July 4th.

I do understand the rationale of why they can’t get the money and it is legitimate. Please advise”

To this, D1 replied, “Ok. Thanks. Jimmy”[915].

683.  Royston was shown a copy of an email from Mark Simon to “Zadomen Linda” dated 27 June 2019 about a request for a bridge loan to be paid to “LI YU HIN”. Attached to the email were what appeared to be WhatsApp exchanges between Mark Simon and D1 about “The fundraising for the newspaper ads”[916]. Royston said that the email had been “blind-copied” to him so that he could include the sum (of HK$5 million) in the monthly summary of D1’s expenses. However, Royston did not know from which account this HK$5 million would come.

Passing of invoices and receipts

684.  Wayland said that he would email the invoices[917] he obtained from “RIP” to Mark Simon for the latter to arrange settlement. Then, Wayland would also email the corresponding payment slips/wire transfer requests and receipts to “RIP”[918] for record.  

685.  Wayland identified the invoices, payment slips and receipts of the following newspapers:

•  The Washington Post[919] (US$85,050)

•  The Guardian[920] (£18,000)

•  Le Monde[921] (€26,000)

•  Le Parisien[922] (€18,000)

•  RCS MediaGroup Spa[923] (€20,000)

The total amount advanced was about HK$1.5 million. It is noted that some of the payments were made by Lais Hotel Properties Limited and Dico Consultants Limited.

Dico Consultants Limited (“Dico”)

686.  Between 2019 and 2020, Royston was a shareholder and director of Dico. D1 was the other shareholder and director of that company. Royston said that he held his shares of that company on trust for D1 and he needed to report to D1 and Mark Simon. The financial matters of Dico required the decision of either D1 or Mark Simon. The cheques of Dico would require the signatures of either D1 alone or by any two of Mark Simon, Royston and Dennis Hung[924].

Lais Hotel Properties Limited (“Lais”)

687.  Royston said that Lais was incorporated in Canada sometime before 2010 and its main business was the management of hotels in Canada including Prince of Wales Hotel, Queen’s Landing and Pillar and Post. These hotels had nothing to do with Next Digital Group. Between 2019 and 2020, the board of directors of Lais Hotel consisted of Royston, Robert Jackson and Mark Simon who was also its Chairman. As a matter of company structure, Lais was held by a holding company which in turn was owned by D1.

Credit period given by Apple Daily Taiwan

688.  Concerning the advertisement in Apple Daily Taiwan[925], there was a term in the placement order requiring cash (NT$1.2 million) before publication. Upon receiving the payment instruction from Apple Daily Taiwan dated 26 June 2019, Andy talked to “T” and was told that the latter and “his side” would handle the matter.

689.  According to Wayland, on that day, he approached Mark Simon for assistance so that payment could be made later and Mark Simon said that he would handle it.[926]  On the following day, there was an email from Mark Simon to Royston asking that a week’s credit be given for the payment of the advertisement, saying that “Mr Lai has approved Assisting as they are having trouble moving their money.”[927]  The “Advertising Order Form”[928] attached said that the client was “Li Yu Hin”. Royston said even though Mark Simon held no official title in the Next Digital Group, he as D1’s personal assistant assisted D1 in the business relating to Next Digital and also D1’s private companies. This incident was one example.

690.  Later, Andy received by post the invoice from Apple Daily Taiwan requesting the payment by 5 July 2019.[929]  At first, Andy mistook the invoice as the receipt because of what “T” had told him before. Subsequently, however, Andy was asked by “T” to settle the payment. This, Andy did on 15 July 2019 by a bank transfer.[930]

First meeting between Andy and Wayland

691.  Both Andy and Wayland said that they met each other physically for the first time sometime in late June 2019. Wayland said specifically that they met at the bus stop outside Pacific Place in Admiralty. Wayland said that by which time, he was yet to know the true name of Andy. On that occasion, Andy received from Wayland some of the remittance advices[931]. It is noteworthy that Andy’s name “Li Yu Hin” or “Li” appeared on some of these remittance advices as the person on whose behalf the payments were made.

692.  On 9 July 2019, upon Andy’s request, “T” forwarded to him an email[932] together with a remittance advance regarding the payment to Washington Post.[933] The email referred to a person called “Mark” who, Andy subsequently came to know, was Mark Simon.

Andy giving Wayland a promissory note

693.  Later in July that year, by which time the advertising campaign for G20 had already concluded, Andy asked “T” how he should repay the loan. “T” said that arrangement needed to be made by his side. Andy was told that people from “T’s” side were not comfortable with the money being in arrears. However, “T’s” side was not able to provide Andy with an account for repayment immediately.

694.  On the other hand, it was Wayland’s evidence that after the G20 campaign was concluded, Wayland began asking Andy whether money raised in the crowdfunding had been collected but there was no reply. Wayland sought advice from several friends in the chat group as to what should be done. An idea came up that Andy be asked to sign a promissory note to assume the responsibility for the HK$1.5 million. Therefore, Wayland drafted the promissory note and made a phone call to Andy.

695.  Eventually, arrangement was made for Andy and Wayland to meet at a coffee shop in Lippo Centre. Wayland brought with him two witnesses. The four of them signed on the promissory note in which Andy acknowledged his liability for in the amount of HK$1.56 million to Mark Simon. It was then that Andy came to know that the name of “RIP” was Li Yu-hin. After that, the promissory note was taken to a solicitor’s firm arranged by “T” who told Andy that the promissory note would be reserved for pacifying “those on the upper level” that the money advanced could be returned.

696.  That night, Wayland made a WhatsApp call to Mark Simon, saying that Andy was willing to be responsible for the debt. However, the problem was that Andy did not know to which account the repayment should be made. Later, Mark Simon reverted and said that, if possible, it was hoped that the repayment could be made to the Canada account. However, it was alright for them to choose any of the three accounts, as they all belonged to his boss. Wayland related to Andy what Mark Simon had said. Several days later, Andy informed Wayland that he had already repaid the money. However, Wayland was told that the money had gone not to Canada, but to the bank account of a company called “Chartwell”.

Repayment of the “bridge loan”

697.  In mid-July 2019, “T” provided Andy with the account details of “Chartwell” and asked Andy to make repayment to this company. Thus, on 1 August and 2 August 2019 Andy repaid a total of HK$1.56 million[934] and passed the relevant remittance advices to “T”. As regards the surplus of the crowdfunding (about HK$150,000[935]), Andy donated it to “612 Humanitarian Relief Fund” to assist the legal fees of protestors who were arrested in the anti-ELAB movement.

698.  As regards “Chartwell”, Royston said that he was aware that in 2019 and 2020, that company was already in existence in Taiwan. However, he was not the one who dealt with this company. According to Royston’s understanding, the company belonged to D1.

699.  Royston was shown a document titled “Jimmy Lai personal, private companies and Taiwan branches combined cash flow from 1 April to 31 October 2019”[936] which bore the names “Lai Chee-ying”, “Royston Chow”, and “Mark Simon” at its top right-hand corner. Royston said that the document was prepared by Linda Mendoza for the three of them for the purpose of letting D1 know about his income and expenses and the states of his bank accounts for all those private companies at the subsequent pages. In that document, “Chartwell” was described in various places as one of D1’s Taiwan Branches.

The JD Campaign

700.  In July 2019, there was another crowdfunding campaign which was referred to during the trial as the “JD campaign” which, Andy said, was initiated by “Mutual Destruction Bro” (「攬炒巴」) and his team.

“Mutual Destruction Bro”

701.  Andy explained that at the time he was told that a person known as “Mutual Destruction Bro” (whom he subsequently came to know was Finn Lau) would like to organise a crowdfunding for an advertisement campaign in the UK relating to the Sino-British Joint Declaration. Andy was aware that “Mutual Destruction Bro” was active in TG groups; his posts in LIHKG were very influential; and he had a lot of supporters.

702.  There is no dispute at the trial that “Mutual Destruction Bro” was in fact Finn Lau, whose English name was “Finn”.

703.  As the previous G20 crowdfunding was regarded as successful, Andy was therefore invited by the team of “Mutual Destruction Bro” to help in the JD Campaign. Andy could not remember who introduced him to the team of “Mutual Destruction Bro”. However, he could say that “Always” and “Jack Hazlewood” were involved in the crowdfunding.

Andy acting as a treasurer

704.  Andy said that apart from making advancements to the campaign, he also acted as a treasurer and he prepared the schedule of income and expenditure.[937] 

705.  Andy said that as the handling charge of “GoGetFunding.com” was high and that this time the crowdfunding was for events to be held in the UK, it was decided to raise fund in pound sterling and to use “GoFundMe.com” as platform for the crowdfunding. Although the information put on “GoFundMe.com” was drafted by “Mutual Destruction Bro” and his team, no one from that side was willing to lend his/her bank account for the purpose of crowdfunding. On the other hand, it was considered that as Andy’s bank account had already been exposed in the previous crowdfunding, even if his bank account was to be used again, that would not further increase his legal risk. Therefore, originally it had been decided that Andy’s Standard Chartered Bank account in Hong Kong be used to receive the fund raised. However, it was later found out that “GoFundMe.com” had a rule which required that funds raised in pound sterling could only be withdrawn into a UK bank account in that denomination. As a result, the money in “GoFundMe.com” could not be withdrawn in the interim. Therefore, during the period between 19 and 25 July 2019, Andy had to advance money to the JD Campaign.[938]

Jack Hazlewood’s bank account used to receive funds

706.  Subsequently, Andy was introduced to “Jack Hazlewood” who agreed to lend his bank account for the purpose of receiving funds from GoFundMe.com. Andy came to know later that Jack Hazlewood wrote for Apple Daily and that “T” (Chan Tsz-wah) was acquainted with Mark Simon, D1 and others. On 9 August 2019, Andy received a total of £308,299.42 from Jack Hazlewood, which he believed was the fund received from “GoFundMe.com”.[939] In cross-examination, having been shown his message with “T”[940], Andy corrected by saying that it was “Wilson” who introduced Jack Hazlewood to him.

Photograph of Margaret Thatcher from Apple Daily

707.  In July or August 2019, “Mutual Destruction Bro” and his side would like to use the photo of the signing of the Joint Declaration showing Margaret Thatcher shaking hands with other people. Someone in the team raised the issue of copyright and others noticed the photo in the website of Hong Kong Apple Daily. Andy then enquired with “T” whether Apple Daily would give permission for using the photo. “T” said to Andy that he was going to have a meal gathering with D1 in the coming Thursday and he would ask him then. Afterwards, “T” reverted and gave a positive reply and Andy got the photo through an email from Apple Daily.

708.  On the other hand, Wayland said that when Andy mentioned to him that “Mutual Destruction Team” required people to help them to do the crowdfunding campaign, he told Andy to do it himself. When Wayland next talked to Andy, the latter was already engaged in that crowdfunding. Later in July 2019, Andy asked for Wayland’s assistance in obtaining Apple Daily’s permission to use a photo of Deng Xiaoping signing the Sino-British Joint Declaration. Wayland told Andy that if it was not urgent, then he could ask D1 later when he met him. However, Andy said that it was very urgent. Therefore, Wayland called Mark Simon directly. Mark Simon told him, however, that this matter had already been dealt with. Wayland then informed Andy so.

The advertisement

709.  In Andy’s mobile, there were photographs[941] of the advertisement placed for the JD campaign which contained the following statements:

“The latest breach comes in a form of the Extradition Bill, which would allow dissidents in Hong Kong to be sent to mainland China to face trial.”

“That is why we, a group of concerned Hongkongers around the world, are calling upon the British Government to impose sanctions on those persons responsible for or complicit in suppressing Hongkongers’ human rights and freedoms.”

“Britain must stand with Hong Kong”.

The advertisement bore the logo of “standwithhk.org” with the words “Fight for Freedom/Stand with Hong Kong” (“SWHK”).

The usage of the fund raised

710.  As regards the fund raised by crowdfunding, Andy said that about £100,000 was spent on placing advertisements in the UK. The remaining sum were spent on rallies and political consultancy service. The political consultancy service was at first provided by “89UP Limited”[942] which was later replaced by “Whitehouse Consultancy Limited”[943]. As regards the latter, Andy said that it made arrangements for the side of “Mutual Destruction Bro” in UK to meet with members of Parliament. In November 2019, during the District Council election in Hong Kong “Whitehouse Consultancy Limited” assisted in finding people to come to Hong Kong to monitor the election. In 2020, the political consultant worked with people like Benedict Rogers of the Hong Kong Watch and they were also involved in an activity leading to a joint statement signed by the former Hong Kong governor Chris Patten.

The “G Fry” Campaign

The origin

711.  In August 2019, there was a third advertisement campaign and its crowdfunding exercise which was referred to as the “G Fry Campaign” during the trial.

712.  Andy said that owing to the success of the G20 Campaign and the JD Campaign, some members of the two campaigns wanted to join hands together and hold a third campaign, the purpose of which was to raise the international awareness about the democracy and freedom in Hong Kong.

713.  In a similar vein, Wayland said that the aim of this third advertisement was to draw international attention to alleged police brutality in Hong Kong and to appeal to the international community to stop selling weapons to Hong Kong Police. Wayland did not know who initiated that campaign but described it as a “crossover” of the G20 Team and the JD Team (“the Mutual Destruction Team”) which later became the “Stand with Hong Kong” (“SWHK”) as people knew it. Therefore, the core members of SWHK were the core members of the JD Team and the G20 Team including “RIP” (Andy), “Ah Fak”, Finn Lau and “Knorr Macaroni”.   

714.  This time, Andy was again responsible for the crowdfunding. “Mutual Destruction Bro” posted messages in LIHKG briefly introducing what the crowdfunding was about in general. Other members of the campaign handled the advertisements.  

The newspaper advertisement campaign

715.  In August 2019, the advertisement was placed in various newspapers of the following places:

•  the United States - New York Times and New York Times (Global) [944]

•  Canada – The Globe and Mail[945]

•  Japan - Nikkei[946]

•  Australia – The Australian[947]

•  Taiwan – The Liberty Times[948]

•  Finland - Sanoma [949]

•  Denmark – Berlingske[950]

•  Sweden - Dagens Industri[951] and Dagens Nyheter[952]

•  France - Le Monde[953]

•  Germany - Frankfurter Allgemeine Zeitung[954]

•  the UK – The Guardian, The Times, Evening Standard, City A.M., The Week and The Economist[955]

•  South Korea – Kyunghyang Shinmun[956]

•  Spain - El Mundo[957]

•  Italy - Corriere della Sera

716.  The advertisement in The Globe and Mail contained the following statement:

“This is an urgent appeal from Hong Kong. The clock is ticking - we need your help.”

“Please urge your government to stand with us, Hongkongers, as we confront escalating violence encouraged from the Hong Kong government. While we fear for our safety - and regret the disruptions caused out of desperation - we vow to keep fighting for freedom and democracy”.

“Today, nobody is safe under the administration of the Hong Kong Government. We are running out of time - but you can make a difference. Request your government to protect the 300,000 Canadians who live in Hong Kong.”

“Please stand with us by:

• Calling on the Canadian government to exert diplomatic pressure on Hong Kong and Beijing and to adopt policies promoting Hongkongers’ rights, freedom and safety, such as sanctions and bans on arms exports.

• Urge the Canadian government to recognize the crimes against humanity committed by the Hong Kong government and its police force.

• In the upcoming general election, elect candidates who will support us as we fight for our rights, freedoms, and way of life”

“Fight For Freedom. Stand With Hong Kong”

Similarly, the advertisement in New York Times said:

“This is an urgent appeal from Hong Kong. The clock is ticking - we need your help.”

“Contact your Senators and Representatives to support or become a co-sponsor to the Hong Kong Human Rights and Democracy Act of 2019 (H.R. 3289/S.1838) and to support the introduction of legislation to suspend US sales of munition and other crowd control equipment to the Hong Kong police”.

The requirement of a US bank account for crowdfunding

717.  This time, the platform used for the crowdfunding was again “GoFundMe.com”. As the money to be raised (around US$1.8 million) was in US dollars, GoFundMe.com required that the bank account used for receiving the funds had to be a US dollar account in the United States. As such, the “G Fry” team had to look for an American who could provide such an account. For that purpose, “G Fry” tried and used the bank account of a wealthy American[958] introduced by “Wilson Li”. However, for some reasons that “Wealthy American No. 1” was unable to withdraw the money out of his bank account. Andy then sought help from Wayland[959].

718.  According to Wayland, whilst he was outside Hong Kong, he received a call from Andy who told him that they were not able to use the money raised by the crowdfunding and they needed a bank account. Wayland asked why Andy’s bank account could not be used. Andy explained that their team did not want the money to flow back into Hong Kong and it would be best to have a bank account in the United States. Wayland thought that Andy was asking him to seek help from Mark Simon and this was what he did. In mid-September 2019, after having some exchanges with Mark Simon and Andy separately, Wayland corresponded with “GoFundMe” (the emails of which were copied to Andy) and provided the platform with the relevant bank account details and personal particulars which he obtained from Mark Simon[960]. As far as Wayland knew, Mark Simon’s bank account was eventually used to receive the funds raised from the third crowdfunding campaign.

719.  On 17 September 2019, “T” sent an email to Kelsey Mathis of “GoFundMe.com” (copied to Andy) which contained the personal particulars of a person referred to as “Wealthy American No. 2”. In fact, the personal particulars were those of Mark Simon[961]. Andy messaged Kelsey Mathis and said, among other thing:[962]

“I hereby authorize the nomination of Mark as the withdrawer of the funds.

All (myself, T, Mark) are informed on the thread and we can communicate over this email without comprising the privacy of any.

Please work with T and Mark to switch to Mark as the withdrawer, thanks.”

720.  Andy was told by “T” that “Wealthy American No. 2” hoped that the fund be transferred to a trust in US and stayed there rather than Andy’s personal bank account. That was to avoid the risk of the money being frozen in the bank system in Hong Kong.

721.  Andy said that with the help of “Wealthy American No. 2”, a bank account was set up with the Amalgarated Bank under the name of “Project Hong Kong Trust” with three “de jure” owners, one of whom was Katherine Cheng. The arrangement was that Mark Simon would transfer the proceeds of the crowdfunding he received into the bank account of “Project Hong Kong Trust”.[963]

Loan advancement from Mark Simon

722.  During the course of the third advertising campaign, Andy indicated that he would need a loan advancement. Wayland told Mark Simon about it. Mark Simon, having learnt from Wayland that Andy had already repaid the previous advancement of HK$1.56 million to Chartwell, agreed to assist.

723.  Similar to the previous occasion, Mark Simon asked that the invoices be sent to him for settlement. Wayland did as told and was later provided by Mark Simon with the relevant receipts. Wayland was shown and he identified the correspondence and documents pertaining to the following media, all of which related to the third advertising campaign in mid-August 2019:

•  El Mundo[964] (€18,500)[965]

•  The Nikkei[966] (JPY20,400,000)

•  Dagens Industri and Danges Nyheter [967] (SEK77,950 + SEK 86,500)

•  Frankfurter Allegmeine Zeitung[968] (€48,848)

•  TBS Partners Ltd[969] (£120,327.60)

•  Kyunghyang Shinmun[970] (KRW22,000,000)

724.  Andy was shown an income and expenditure schedule prepared by him covering the period between August 2019 and February 2020.[971] Up to March 2020 the “G Fry Campaign” incurred advertisement expenses of about HK$6.33 million[972]. Andy said that around HK$3.5 million of that sum was advanced by Mark Simon[973] and the rest of around HK$2.7 million was advanced by Andy[974]. After repayment, on 27 May 2020 there was a running balance of US$698,000 odd[975] which, Andy understood, was to be used in other activities of SWHK.

725.  During a Signal exchange on 23 July 2020 between Andy and Wayland, Wayland asked what the amount of “Mark Gor” was[976]. That, according to Andy, was a reference to the outstanding amount in relation to the “G Fry” campaign which Mark Simon should transfer to the bank account of “Project Hong Kong Trust”. Andy informed Wayland that the amount due from “T’s side” was US$26,061.16[977]. On 27 July 2020, Wayland messaged Andy and said that he had “pinged Mark about the issue”[978]. On 3 August 2020, Wayland messaged Andy again and said that he was “calling Mark to follow up the figures”[979]. Andy then forwarded to Wayland a “Settlement report”[980]. However, because of Andy’s arrest, he did not know if Mark Simon had eventually repaid the sum to “Project Hong Kong Trust”.

726.  In cross-examination, Andy confirmed that, by September 2019, the bridge loan made to SWHK had been fully repaid and after that SWHK did not receive any money associated with either Mark Simon or D1. Andy agreed that the activities of SWHK other than the advertisement campaign were financed solely by the surplus of the crowdfunding.  

D1’s knowledge of “G Fry” and his approval of the loan

727.  That D1 had knowledge of the “G Fry” newspaper advertisement/crowdfunding campaign and that the loan from Mark Simon in fact came from D1 and with his approval is shown by his WhatsApp exchanges with Mark Simon. The details are as follows.

728.  On 12 August 2019, Mark Simon texted D1 and said,

“Also, the Fight For Freedom Group, ones we helped with international ads last time, has paid us back in full.

They are now doing another ad campaign and may need bridge loans/Guarentees from us again. Is it okay.

Mark”[981]

Mark Simon attached a photograph of what appeared to be a screen page of the crowdfunding site and said[982],

“This is their CrowdSource. They have raised USD$884,000 in less than two hours.”

To this, D1 replied,

“Ok. Thanks. Jimmy”.[983]

729.  On 17 August 2019, D1 asked when was the day that they raised crowdfunding and what was their purpose for advertising[984]. Mark Simon replied[985],

“They raise the money Monday the 12th. The purpose of the money is to place advertisements in major news organizations and on line around the world. For example the New York Times, the Australian.

ads are placed In countries such as of course the United States, but also Japan South Korea, France and Spain plus a number of other countries

The idea is simple to ask for the world to support Hong Kong”

730.  On 6 November 2019, Mark Simon informed D1[986],

“Jimmy,

Just wanted to let you know that all monies that were used for the international ad campaign are now back with us. They had sent to a US account where it sat, under my control, but banks just cleared its movement & now with you.

Rgds”

Mark”

To this, D1 replied,

“Ok. Thanks. Jimmy”[987]

The “Rise from Ashes” Campaign (「重光香港計劃」)

731.  There was a fourth crowdfunding campaign in May 2020 which was known as “Rise from Ashes”.

732.  By way of background, Andy explained that there had been an enquiry by “Mutual Destruction Bro” and other members of SWHK about the proceeds of the previous crowdfunding and how long those proceeds might last in support of SWHK’s future activities. Therefore, Andy worked out his projection on a worksheet for their information. It was then decided that another crowdfunding exercise would be necessary.

733.  By which time, “Project Hong Kong Trust” had been set up and the NSL was approaching. Andy discussed with Wayland and “Mutual Destruction Bro” respectively. It was decided that for Andy’s protection he should not be involved in this crowdfunding campaign.

“Fight for Freedom. Stand with Hong Kong. 重光團隊” (“SWHK”)

The composition of SWHK

734.  We have already referred to the evidence of both Andy and Wayland that the “G Fry” campaign started off as a “cross-over” of the “G20 team” and the “Mutual Destruction Team”.

735.  Andy said that “SWHK” was first adopted as a name in July 2019 (after a vote in TG) for the purpose of taking credit and responsibility for the advertisement campaigns. The founders included Andy himself, “Mutual Destruction Bro”, “Always”, “Madison” and Shirley Ho[988].

736.  According to Andy, there was a period of time when both the names “G Fry” and “SWHK” were used. There were some people in the group who labelled themselves as “G Fry”, whereas others would label themselves as “SWHK”. By late August 2019, however, there was a split of opinions within the TG groups as to whether international advertisement campaigns should continue to be held. According to Wayland, “Knorr Macaroni” advocated for the continuation of international advertisement campaigns. On the other hand, both Andy and Wayland were of the view that it was not a good idea. For that reason, Andy left the group for a spell of time.

737.  Both Andy and Wayland said that by the end of 2019, however, many of those who wanted to continue with advertisement campaigns had left the group and the influence of the G20 team dwindled. Gradually, the name “G Fry” became more like a historic label for the initial stage of the newspaper advertisement campaigns, whereas other activities were continued to be held in the name of “SWHK”. As regards the “JD” side, that is the side of “Mutual Destruction Bro”, there were ongoing activities held in the UK, including public events and meetings with members of Parliament. Wayland added that at that stage who had a say in SWHK included “RIP” (Andy), “Mutual Destruction Bro” (Finn Lau), “Madison”, “Surely” (Shirley Ho) and “Always”. “Project Hong Kong Trust”, which held the remaining HK$7-8 million from the three crowdfunding campaigns, was controlled by the same group of people. Shirley Ho was from the US front. SWHK gradually shifted its focus from UK to US.

738.  Upon enquiry by the Court, Andy agreed that nobody had the monopoly in the use of the name “SWHK”. In cross-examination, he agreed that SWHK was not an organisation with a formal membership structure, so that one did not put himself or herself forward in any official way to be recognised as its member. Andy described SWHK as a “grassroots crowdfunded advocacy group”. Moreover, there was no formal leadership structure, although some members may tend to be more vocal and active. If somebody did not support a particular activity or event, then they could simply choose not to take part in that, or they could raise their own objection and try to persuade others in the various TG groups. No one could dictate to other members what they should do. That, Andy agreed, was one aspect of a decentralised organisation. Judging from the display names of the members, the way they spoke and their point of views, it seemed to Andy that they resembled or resonated with the younger generation.

SWHK’s website

739.  In his evidence, Andy identified the website of SWHK[989]. He said that originally the website was managed by a person with the display name “Kirin Bumper” with the assistance of some other members. Later on, Andy[990] succeeded “Kirin Bumper” as the person-in-charge of the website.[991] 

740.  The website provided links for people to join campaigns in various countries including Australia, Canada, Germany, Denmark, France, Ireland, Japan, Korea, the Netherlands, New Zealand, Sweden, United Kingdom, United States. It is noted that in the box providing the link to join the campaign in the US, there was the following description[992]:

“Ask your Senate and House representatives to urge the Trump administration to implement and enforce sanctions provide in Hong Kong Human Rights and Democracy Act 2019”

In the box for the UK, it said[993],

“Ask your MP to call on the UK to hold China to its promises under the Sino-British Joint Declaration, and participate in local rallies in your area.”

This is to contrast with the boxes for the other countries, where they said[994],

Call on your government to exert diplomatic on the Hong Kong and Chinese governments and to adopt policies promoting Hong Kongers’ rights, freedom and safety, and participate in local rallies in your area.

The previous campaigns of SWHK were listed out as follows[995]:

“1. Submission of the request to revoke the right of abode of Hong Kong Government officials in the UK, US and Australia

2. Submission of the excessive use of force by the police to the High Commissioner of the United Nations Human Rights Office

3. Submission of the request to revoke the Chief Executive’s Legion of Honour Distinction to the French Government

4. Submission of the request to revoke the right of abode of Hong Kong Secretary of Justice’s husband in Canada

5. Submission of the request to urge the European Union to impose an arms embargo against the Hong Kong Police

6. Submission of the report of potential tax evasion by the Secretary of Justice's husband in Canada

7. An op-ed in the Financial Times, “Technology aids unity of Hong Kong movement”

8. Submission of a complaint of Junius Kwan-yiu Ho to the Solicitors Regulation Authority in England

9. Submission of the request to revoke the citizenship of British expats who were involved in the police crackdown on 12 June to the UK Home Office

10. Commencement of the crowdfunding campaign, which formally initiated the “Fight for Freedom. Stand with Hong Kong.” organization”

741.  The website also enumerated SWHK’s “achievement and activities since July 2019” as follows[996]:

“1. Advertising campaign in 7 media outlets in the UK

2. Advertising campaign on social media

3. Billboard campaign

4. Launch of social media channels

5. Online Petition in the UK, with over 20,000 emails sent to UK MPs

6. Organised and coordinated more than 40 events globally (as of Jan 2020)

7. YouTube explainer video on the Sino-British Joint Declaration

8. “Fight Against Tyranny, Stand With Hong Kong”’ video

9. A number of Op-Ed and news coverage

10. Two speeches from Tom Watson MP and Heidi Allen MP for 16th August Power to the People Rally

11. Power to the People Rally in Hong Kong on 16 Aug, with 60,000 turn-out

12. Arranged Bob Seely MP to visit Hong Kong on 31 August

13. Articles, signed off by MPs, have been published in national and international media

14. 60 parliamentarians have officially stated China has breached the Joint Declaration

15. Prepared a briefing note on Hong Kong and shared with all members of both House of Parliament

16. A submission to the International Trade Select Committee

17. Tabled parliamentary questions to the Foreign Secretary

18. Hong Kong was raised in the Queens’ Speech

19. A debate in the House of Lords, led by Lord Alton has been arranged

20. Published a research report on San Uk Ling detention centre

21. Expanded lobbying activities in the United States, European Union and other countries”

742.  The website contained “Fundraiser Reports” which included the income and expenditure accounts of the “JD” campaign[997] and the “G Fry” campaign[998]. It is of note that as regards the accounts of the “G Fry” campaign between 11 August 2019 and 27 May 2020[999]:

•  the Chinese caption read: 「全球登報制裁港共眾籌活動」(literally “Crowdfunding Campaign for the International Advertisement Campaign to Sanction Hong Kong communist”); and

•  the English caption, however, read, “Fundraising Campaign for Global Newspaper Advertisement and Advocacy for Hong Kong Initiatives”.

743.  Andy agreed that the two captions did not tally and he said that the former was couched in flowery languages with a view to encouraging people to donate. Andy explained further that the Chinese caption implied that the Hong Kong regime was connected with the Communist Party. He disagreed, however, that one objective of the “G Fry Campaign” was to seek the imposition of sanctions by foreign countries on the Hong Kong Government and Beijing. Nevertheless, a general consensus among the members of the “G Fry” campaign” was to fight for what they thought would be conducive to the democratic development in Hong Kong and some of them would agree that sanction would facilitate their objective.

744.  In this regard, we note that:

(a)  one of the activities said to have been organised by SWHK was “an Election Observation Mission (EOM) trip to scrutinise the Hong Kong District Council Elections on 24 November, consisting of a three-day event with panel sessions and three observation teams covering HK Island, Kowloon and New Territories. The team of 19 leading politicians and experts from 10 different countries”[1000];

(b)  one of the reports said to have been published by SWHK in its website was “Profiles of Hong Kong Repression: Perpetrators of Human Rights and Democracy Abuse, co-authored with HKIAD, to assist with the identification of targets for Magnitsky-style sanctions, 20 December 2019”[1001]; and

(c)  in “An Open Letter to the People of the United Kingdom” posted in SWHK’s website, it said[1002],

“We are calling for support from all those in the United Kingdom and around the world to stand with the ordinary people of Hong Kong. If you are in the UK, please write to your MPs and urge them to support the following requests:

I. Imposing sanctions on those responsible for or complicit in suppressing human rights and freedoms guaranteed by the Sino-British Joint Declaration; and

II. …”

745.  We also note the evidence of Andy that in 2020 SWHK as an organization joined the Central Secretariat of IPAC[1003]. We shall come back to this topic about the change of SWHK’s direction and strategy from one of newspaper advertisement campaign to international lobbying work in due course.

Chapter 19 – Andy’s association with Wayland
and international lobbying

Introduction

746.  It is the prosecution case that the activities of Andy and Wayland after the promulgation of the NSL were part of the overt acts of the conspiracy which is the subject matter of Charge 3.  

747.  In this chapter, by way of background we will first deal with the evidence of Andy and Wayland as to how they became involved in international lobbying and the evidence about the Taipei meeting. Then, we will deal with the evidence of Andy and Wayland in relation to SWHK and IPAC.

Mark Simon suggested Andy & Wayland engaging in lobbying

748.  According to Wayland, he first mentioned Andy to Mark Simon during the first crowdfunding campaign. Moreover, Andy’s name also appeared on some of the payment receipts. Then, there was the incident about the promissory note. When Wayland met with Mark Simon, he also mentioned Andy to him as the latter wanted to know more about Andy. According to Wayland, Mark Simon grumbled about the tardiness of Andy’s requests which often came at the very last minute. However, Mark Simon also regarded Andy as a man of high ability.

749.  Around August and September 2019, Mark Simon suggested that Wayland and Andy rent an office in Capitol Hill in Washington for exhibition and lobbying. Mark Simon told Wayland that the reason why D1 was able to meet so many officials was mainly because of the payment made to consultancy companies. Mark Simon suggested that some lobbying work be done in the community and that Wayland invite some foreign officials to come to Hong Kong to make observation.

750.  Around the end of August or September 2019, Wayland and Andy had a discussion as to whether advertisement campaigns should be continued to be conducted. They had this discussion because Mark Simon had said that placing advertisement in newspapers was not the best way to conduct publicity literature. Andy expressed the view that advertisement campaign was just like a firework in that the first time was really beautiful and glamorous. It would be alright for the second time. However, it would not have much meaning if continued. Andy asked whether more effort should be devoted to international lobbying work. However, the discussion did not lead to any conclusion.

Andy’s visit to OHCHR

751.  In the meantime in mid-August 2019, Andy paid a visit to the Office of the United Nations High Commissioner for Human Rights (“OHCHR”) in Geneva and met Sebastien Gillioz who was in charge of the China desk within OHCHR. Andy said that the purpose of the visit was twofold: (1) to canvass the possibility of doing human rights lobbying within the OHCHR; and (2) to prepare for the summit that was to be held in September 2019.

752.  Andy said that he was asked by a person in the TG group with the display name “Sheep” to pay the visit. “Sheep” was a staff member of an office in the UN. “Sheep” said that OHCHR had released a statement concerning Hong Kong, the gist of which was that they paid attention to the freedom and democracy of Hong Kong. That, according to “Sheep”, was very unusual because throughout the history only two statements had been released concerning Hong Kong. That means that at that time OHCHR was placing much emphasis on the situation of Hong Kong. “Sheep” said that there would be a meeting in Geneva by the Human Rights Council. It was suggested that Andy approach Sebastien Gillioz in advance.

753.  Subsequently, Andy went with Shirley Ho and Adder to Geneva and met with Sebastien Gillioz. On that occasion, Andy used the name card of “Hong Kong Story Limited”[1004] which was a company set up by him.

Visit by Bob Seely MP

754.  According to Andy, on the invitation of SWHK, on 31 August 2019 Bob Seely MP of the UK visited Hong Kong to “observe demonstrations”.[1005] A person called Li Chung-chak, Wilson (“Wilson Li”) was responsible for most of the logistics. Before the arrival of the MP, Andy had been informed by the side of “Mutual Destruction Bro” through TG that the MP would like to come to Hong Kong to view demonstrations and it was hoped that someone from the Hong Kong side would receive him.

755.  Eventually, when Bob Seely came, Andy attended a meal gathering with the MP at a Chinese restaurant in Causeway Bay. Also present were Wilson Li and others. Andy related to the MP what happened in Hong Kong. Andy understood that someone had brought Bob Seely to the scene of a demonstration where teargas was used. As regards the expenses of this visit by Bob Seely, a claim for reimbursement was made from the JD campaign, as it was connected with the UK.

Andy’s meeting with Senator Rick Scott

756.  We have already referred to the WhatsApp messages between D1 and Mark Simon about D1’s desire to have a “fact-finding” visit by US congressmen to Hong Kong and their messages about the arrangement for Senator Scott to have a “one-to-one” meeting with D1 on 29 September 2019. With this background in mind, we now turn to the evidence of the meeting of Andy with Rick Scott on the same day which was also arranged by Mark Simon. It is noted that by which time, D1 and Wayland had already met.

757.  According to Wayland, he received a WhatsApp call from Mark Simon who asked if he was available to meet with “Rick Scott”. Wayland was told that Rick Scott was a US Senator who really would like to know about the situation in Hong Kong. At the time, because of the 721 incident and also the 831 incident, the entire atmosphere, as far as the anti-ELAB movement was concerned, was very tense. It happened that Wayland was not available as he was having a trip in Taiwan. Therefore, he asked if Mark Simon could think of someone else. Mark Simon then asked about Andy, whom he knew had experience in crowdfunding and had been to the UN. Mark Simon said that the meeting would also be a very good chance for Andy’s future international lobbying work. Since Andy did not take part in demonstrations in the frontline, Mark Simon suggested that it would be best if someone from the frontline could also attend. As a result, Wayland posted that request in the TG group and someone of the name “Cath” responded to it.

758.  On 29 September 2019, Wayland set up a WhatsApp chat group called “Coffee on Sunday”[1006] and he, Mark Simon, Andy and “Cath” were members. By the arrangement of Mark Simon, Andy and Cath met with Senator Rick Scott later on the same day. At 14:51 hours, Mark Simon asked if they could be free for the meeting at 4:45 pm in the Mid-Levels. Andy said he could drive “Cath” over and he asked for the address. Wayland said that “Cath” was also available[1007]. At 15:08 hours, Mark Simon told the group that he was “adding Consul Alan Brinker & Mr Scott Sciretta to this conversation as they will get you to Senator.”[1008] Mark Simon went on to brief them on the background of Rick Scott, saying that the latter was the former governor of Florida and was just elected as senator and that he “has a future presidential candidate in 2024 and so is very interested in China and foreign policy”, that Scott “has pre-disposed towards human rights and is very open to suggestions”. Mark Simon also said, “What they want to talk to you about is the front line and what motivates the front line” and “What is it that upsets front line and how do you see the movement going forward”. Wayland replied that he thought “Cath” could talk more about this and said that “Cath is frontline people, Li is international propaganda people.”[1009]  Mark Simon then added, “What would really impress him is if you talk about the go fund me ... shows support”[1010]. At 15:43 hours, Wayland replied[1011],

“Indeed. @A.L as discussed, we can disclose certain information and we two would provide assistance on the next campaign.”

759.  As we have previously noted, there is evidence that a meeting between D1 and Rick Scott was arranged at 2 pm on the same day which was before Scott’s meeting with Andy and “Cath”. Moreover, D1 was told by Mark Simon (at 15:22 hours) [1012]:

“OK the meeting is arranged, and they will be seeing them at 4:45.”

It is obvious that the “4:45” meeting that Mark Simon was talking about was the meeting that Rick Scott was going to have with Andy and “Cath”.

760.  Andy said that although he had read the personal particulars of “Mark Simon” in “T” ’s emails to “GoFundMe.com”[1013], he did not attach importance to that name and he did not remember it. It was only when the “Coffee on Sunday” chat group was set up that he and Mark Simon got to know each other. As to why “T” wanted him to meet Rick Scott, Andy said that “T” was impressed by his international lobbying. This was because Andy had told “T” about his visit to OHCHR, that he was going to submit the information on Hong Kong through the special procedure and that a staff member within the OHCHR would prioritize this particular matter. Moreover, Andy had just returned from lobbying in France. “T” and Andy decided that Andy would gradually transition to do international lobbying.

761.  Almost immediately after the aforesaid exchanges in “Coffee on Sunday”, in a private message between Wayland and Andy at 15:45 hours, Wayland informed Andy of the instruction from Mark Simon: “Brother, Mark said do not mention about backer and JD team.”[1014] Wayland said “backer” referred to persons who had made advancements to the global advertisement campaign, i.e., Mark Simon and D1. As regards the JD team, Wayland said that at that time their stance was the most radical in terms of ideology. On the international level, some people might equate Hong Kong independence with mutual destruction and no politicians would be willing to endorse that concept. Wayland’s understanding was that in order not to turn the conversation into an unpleasant one, the JD team or the idea of Hong Kong independence should not be mentioned[1015].

762.  In another WhatsApp chat group “HK Sunday meeting” created by Mark Simon (at 15:14 hours), members of which included Andy, Alan Brinker and Scott Sciretta, he introduced the latter two to the others and said that Alan Brinker was with the consulate and Scott Sciretta was on the Senator’s staff. He provided Andy with the address of the meeting which was on Magazine Gap Road[1016]. Andy and “Cath” subsequently arrived at the place of meeting as arranged.

763.  At the meeting, Consul Alan Brinker and Scott Sciretta were also present. That was the first time that Andy met Mark Simon in person but he did not speak with the latter on this occasion. During the meeting “Cath” gave a description of the situation of the protest. Andy briefly described the crowdfunding campaigns. It was Andy’s hope that the US Government would do something. However, nothing specific was mentioned. In cross-examination, Andy agreed that, given the dynamic of the meeting, Senator Scott was there to learn.

764.  After the meeting, Mark Simon reported in the chat group that, “Scott was impressed. Thanks AL. and thanks to Cathy.”  To this, Wayland replied, “Great.”[1017]  Later, in a private conversation Mark Simon told Wayland that Rick Scott was very impressed, but the crowdfunding part did not have much use. On the contrary, it seemed that networking like this would be even better. Wayland understood that Mark Simon was of the view that Wayland and Andy should get to know more people.

Election Observation Mission (“EOM”)

765.  There was a District Council Election held on 24 November 2019. We have already referred to the “Election Observation Mission Report” posted on SWHK’s webpage where it was said[1018]:

“The EOM was co-organised by “Fight for Freedom. Stand with Hong Kong.’ and “Hong Kong Story”, two non-governmental organisations established by Hongkongers who have been proactively advocating for international support for the city’s fight for freedom and democracy.”

766.  The “EOM” was about inviting international observers[1019] to come and observe the District Council Election. Its idea came from a discussion in TG group where it was said that Lord Alton (of UK) intended to come to Hong Kong to observe the District Council Election but he would like to have an invitation from a Hong Kong activist organisation. Andy was asked whether he had access to any such activist organisation in Hong Kong. Andy then agreed to send the invitation in the name of his company “Hong Kong Story”. The side of “Mutual Destruction Bro” and Whitehouse Consultancy then suggested extending the invitation to other people. Andy agreed to this and he enlisted the help of Wilson Li who had previously assisted in the visit of Bob Seely.

767.  Concerning the use of “Hong Kong Story” as an inviting party of the EOM, we have already referred to the evidence that D1 was informed by Benedict Rogers that Lord Alton was coming to Hong Kong and on 17 December 2019 Benedict Rogers also informed D1 that the EOM was co-organised by “Fight for Freedom, Stand with Hong Kong” and “Hong Kong Story”[1020].

768.  In the meantime, Andy also discussed the matter with Wayland who also supported the idea. Wayland hoped that through this incident Andy could extend his network. Subsequently, Andy sent out the invitations and also received the “delegates” when they came to Hong Kong. As Andy did not have sufficient funds for the event, he asked Wayland to see if he could figure something out, for instance, advance payments from “his side” or some other ways.

769.  Turning to Wayland’s evidence. He said that prior to the District Council Election there was a phone call from Andy who said that he was conducting an activity to monitor the election. Wayland’s help was sought as Andy was short of about HK$250,000 for the activity. Wayland then got in touch with Mark Simon. Mark Simon was interested and he asked for more details. Wayland asked Andy and suggested that Andy should contact Mark Simon directly, as the two of them had already met. However, Andy preferred that Wayland did the explaining to Mark Simon. Wayland gave Mark Simon the name list which he obtained from Andy of the parliamentarians who would be coming. About a week later, Mark Simon reverted. He observed that Lord Alton was coming, he said, “Okay, we were going to give a lot of support” and he asked for Andy’s bank account number.

770.  Andy said that he advanced around HK$552,000 as part of the expenditure of EOM[1021] which he was later reimbursed from the funds raised in the “G Fry Campaign”. There was also a loan of HK$500,000 from Mark Simon through Wayland on 21 November 2019[1022]. Later, when Mark Simon returned the funds held on behalf of “G Fry” to “Project Hong Kong Trust”, he deducted the HK$500,000 which he had advanced to Andy.

771.  One of the “delegates” was Luke de Pulford who apparently came with Lord Alton[1023]. Andy was shown his WhatsApp exchanges with Luke de Pulford both before and immediately after his arrival in Hong Kong.[1024] Andy said that either on the last day of the EOM or on the morning of the following day, there was a meeting among Lord Alton, Luke de Pulford, Martin Lee and Anson Chan at W Hotel[1025]. Andy also joined that meeting as the representative of the EOM and he talked with Lord Alton and Luke de Pulford. Martin Lee, Anson Chan and Andy talked about the situation of democracy in Hong Kong. Lord Alton and Luke de Pulford said that they would try to raise the concern in relation to this on the UK side.

772.  Andy also said in his evidence that during the course of the EOM, Samuel Chu had come to Hong Kong. Andy had met with him and got his WhatsApp contacts.

Andy’s visit to US

The role of Mark Simon

773.  In December 2019, at the request of the people of SWHK and SWHK US (including Shirley Ho), Andy and others went on a trip to Washington in the US and met with the Republican Senator Rick Scott in Capitol Hill. During the trip, Andy also met with Todd Young, Ted Cruz and Marsha Blackburn. Samuel Chu[1026], whom Andy had met during the course of the EOM and whom Andy knew was a member of the HKDC, was involved in making the arrangement of the meetings with the congressmen and senators.

774.  It transpired that Mark Simon was behind this US visit. According to Wayland, he received a call from Andy in December 2019 and was told that the latter was going to the US to meet with some prominent political figures. Andy told Wayland that SWHK and the side of Mutual Destruction Team were making referrals for him but he was concerned that he might end up meeting with no one. Therefore, Andy would like Wayland to ask the side of Mark Simon to see if any assistance could be given, as Andy realised that the relationship between Chu Muk-man (Samuel Chu), D1 and Mark Simon was particularly good. Wayland then contacted Mark Simon who asked for further information about the trip. After conferring with Andy, Wayland informed Mark Simon that Andy would like to meet with US officials and explain to them the situation of Hong Kong; to do international lobbying work; and to hand over a sanction list. Having heard what Wayland said, Mark Simon asked Wayland to tell Andy to rest assured that he would not end up meeting with no one. At least Andy would get to meet Rick Scott and Samuel Chu who would make arrangement. Mark Simon also asked Wayland to encourage Andy and to ask Andy to do some networking, as that would facilitate his future international lobbying work.

Samuel Chu as staffer

775.  On 11 December 2019, there was in SWHK’s webpage showing a photo of Katherine Cheng (a trustee of “Project Hong Kong Trust”), Sonia, Andy, Todd Young and Samuel Chu[1027]. The first paragraph of that webpage said, “Today is the first time everyday HongKongers told their stories at the Capitol Hill.” 

776.  Coming back to the evidence of Andy, he said that the purpose of this US visit was twofold: (1) to push forward things in the US that would support Hong Kong; and (2) to hold perpetrators of human rights violations accountable by way of sanction. At the time, Samuel Chu briefed them before the meetings and acted as their staffer. During the meetings, Andy and others talked about the stories of protestors who were “victims” and they thanked the senators and congressmen for showing concern to the situation in Hong Kong. Andy and his company did not make any concrete requests of the other side, those were left to the staffers on both sides.

Sanction Reports

777.  Andy said that during the US trip, he and Shirley Ho once went to a stationery shop called Staples where Shirley printed out hard copies of a sanction report stored in a USB. Samuel Chu said that the sanction report should not be given to the congressmen and the senators yet and that it should not be mentioned in the meetings. Andy was shown a document seized from his home marked “Version 2  December 2019” and “Confidential” titled “Profiles of Hong Kong Repression Perpetrators of Human Rights and Democracy Abuse”, “For the United States of America”.[1028] The document bore the logos of IAD and SWHK. He identified it as one of the hard copies printed out at Staples in Washington.

778.  On 16 December 2019, after Andy had returned from the US, he forwarded to Samuel Chu by TG[1029] a soft copy of what appeared to be an earlier version of the sanction report: “Version 1 November 2019” which was marked “Confidential”.[1030] In that report, the suggested targets were divided into four tiers:

•  Tier 1: “State actors who condone and give orders for human rights violations”[1031] which mainly consisted of principal officials in Hong Kong including former Chief Executives and others;

•  Tier 2: “State actors, including politicians, who instigate human rights violations”[1032] which mainly consisted of senior police officers, returning officers and members of the Legislative Council and the Executive Council;

•  Tier 3: “State and private actors who aid and abet human rights violations”[1033], one of which was the Chief Executive Officer of MTR Corporation; and

•  Tier 4: “Organisations who facilitate Human Rights Violations”[1034];

The report said, among other things, that:

“The US should sanction (Carrie) Lam to reaffirm US commitment to human rights and to uphold autonomy of Hong Kong…

In the long run, the imposition of sanctions would best safeguard the safety of American expats in Hong Kong, US national security and US financial interests in Hong Kong”[1035]

Andy told Samuel that the document should not go public. If there was a need to circulate the document to the congressmen and senators, then Samuel Chu would have to check with Andy’s side first.

779.  He added that at the time before the US trip when the document was being compiled, the US Government was contemplating passing the Hong Kong Human Rights and Democracy Act (“HKHRDA”). The idea of sanction was discussed in the TG groups of SWHK and Andy was a party to that discussion. The aforesaid softcopy document was not prepared by him but by someone else of SWHK and he received it from a SWHK member called “Momomo”. In Andy’s mobile, there was a soft copy of yet another version of the sanction report marked “Version 2 December 2019” and “Confidential” but without the words “For the United States of America”.[1036]  However, Andy was unable to remember when and in what circumstances he obtained that document.

780.  On 21 December 2019, Andy sent to Samuel Chu a Facebook link of SWHK and informed that, “Document declassified. The sanction list is now public, at least the version here”[1037]. There was a picture of the cover of a sanction report marked “Version 3 December 2019”.[1038]  It was said[1039]:

“After months of painstaking research and effort, Fight for Freedom. Stand with Hong Kong and香港大專學界國際事務代表團 Hong Kong IAD jointly announce the release of a sanction report entitled ‘Profiles of Hong Kong Repression: Perpetrators of Human Rights and Democracy Abuse’

…

In addition, this document is being sent to all organisations and parliamentarians of multiple countries for further action. It is our hope that this report will make it easier for countries to pinpoint suitable individuals for sanctions, people who have sold out Hongkongers’ basic human rights for personal gain.”

781.  Andy was shown the sanction report (Version 3) which the Police had downloaded from the SWHK website. He said that he took no part in its compilation and he did not know if this sanction report (which contained a list of persons under the four aforesaid tiers) had in fact been sent to countries other than US and UK. As far as he knew, no one had attempted to remove the sanction report from the webpage of SWHK after it was uploaded.

Mark Simon’s report to D1

782.  It is pertinent to note that, on 5 January 2020, Mark Simon texted D1 and informed him that he had just returned from Washington the night before. It is pertinent to note that, when he was updating D1 as to what happened “from Hill meetings”, he also told D1[1040]:

“Good news in that our friend Waylan (sic) has been able to snyc (sic) up the folks who did the international ads with Sam Chu so that’s one less competing set of voices in DC. (That was not an easy task).”

Andy sharing sanction list with Wayland

783.  Wayland said that after Andy had returned from the said US trip, in January or February 2020 (which would be after the Taipei meeting with D1 and Finn Lau), Andy shared with him what he had done over there. Andy sent Wayland a direct link to a sanction list for him to have a look. By which time, it had already been decided that Andy together with “Mutual Destruction Bro” would fight on the international front. As regards the sanction list, Wayland said that it looked similar to the one he was shown in Court, namely the document titled “Profiles of Hong Kong Repression, Perpetrators of Human Rights and Democracy Abuse”.[1041]

Andy sharing sanction list with Luke de Pulford

784.  As aforesaid, Andy first met Luke de Pulford in Hong Kong in November 2019 during the EOM. Subsequently, Andy had communication via TG with the latter between January 2020 and August 2020.[1042]

785.  On 12 January 2020, Luke de Pulford added Andy to a Signal chat group named “Joey + Nat + Luke + Dimon + Andy”. [1043]

786.  Luke de Pulford introduced everyone in the group identifying who they represented saying and identifying himself as the interfering foreigner.

“I don’t know if you all know one another so briefly:

Andy: Stand With HK

Dimon: US based HK lobbying

Joey: IAD HKer who never sleeps

Luke: interfering foreigner”[1044]

787.  On 19 January 2020, Luke de Pulford asked in that chat group[1045],

“Joey and Nat, Would you reach out to Dr Warren Mann? He needs names of top ranked HK policemen who must be sanctioned…

We have to escalate the pressure on US government that these policemen should be named and sanctioned by American law.”

There is no reply from “Joey” and “Nat”. On the other hand, on 21 January 2020 Andy forwarded a Google Drive link to the sanction report that was posted on SWHK’s website and told Luke de Pulford that “the sanction list can be found here” and “it has already been published in public shortly before Christmas”[1046].

Video conference with “Mutual Destruction Bro” and “T”

788.  According to Andy, in January 2020 he had a video conference with Wayland and “Mutual Destruction Bro” through a communication application called “Jitsi”. That was also the first time that Andy saw “Mutual Destruction Bro” and learnt that his name was Finn Lau. At the time, Wayland was physically with “Mutual Destruction Bro”.

789.  According to Wayland, the video conference took place on 12 January 2020. That was after his meeting with D1 and “Mutual Destruction Bro” at D1’s residence in Taipei. When he and “Mutual Destruction Bro” were having the video conference with Andy, he and “Mutual Destruction Bro” were in his hotel room. The purpose was to relate to Andy the key points of their meeting with D1. As Andy was one of the leaders of SWHK, if “Mutual Destruction Bro” wanted the entire SWHK to follow D1’s thinking, he had to obtain the consent of Andy who knew about the Taiwan trip.

790.  Andy said that in the meeting a consensus was reached among the three of them that “Mutual Destruction Bro” would continue to play the role as a spiritual leader or influencer; he would continue with his lobbying work in the international front; and Wayland would engage in groundwork locally in Hong Kong.

791.  Similarly, Wayland said that the three of them agreed on uniting various sectors, international lobbying and pushing forward sanctions. They then discussed the division of work and the way to achieve “China implosion”. They talked about whether “Mutual Destruction Bro” would be working at the legislature front. It was decided that in any event he would act as a spiritual leader to strengthen SWHK and to promote “mutual destruction” the slogan of which was “If we burn, you burn with us”. That is to say that there would be prices to be paid if the Hong Kong Government refused to respond to citizens’ demands. As to what actually needed to be done, they hoped to push forward sanctions. Since Andy already had experiences visiting and meeting foreign officials, it was decided that he would engage in international lobbying work in order to push forward sanction legislation or economic blockade against the HKSAR Government and to expand his international network. As for Wayland, he would continue to liaise with the valiant camp, hoping that in case of street demonstrations, there would be a channel of dialogue. He would also contact political neophytes to see if they would take part in the legislature front. Wayland also said that he told D1 what had been discussed in the video conference. We shall come back to the Taipei meeting when we deal with Wayland’s evidence on his association and meetings with D1.

Lobbying relating to Japan

792.  In December 2019, Andy went to Japan and met with two members of the National Diet of Japan, Inoue Satoshi and Yamazoe Taku, who were members of the Communist Party in Japan. The purpose of the meeting was to inform the Diet members of the situation in Hong Kong. Andy also brought along some used teargas casings for them to take a look.

793.  In January 2020, Andy met with Takai Takashi (a member of National Diet of Japan) and his wife Hasegawa in Hong Kong. Afterwards, on 7 January 2020, Andy forwarded to Takai Takashi the links to two proposed bills on Human Rights and Democracy concerning the situation then in Hong Kong. Those proposed bills were prepared by a SWHK member “Katatsuki Hayashi” whose Chinese name was 「張亦澄」(pronounced as Cho Eki Cho).[1047]  According to Cho Eki Cho, the drafts had also been copied to Shiori Yamao (another Diet member). Andy had neither read the two proposed bills, nor did he know whether the drafts had in fact been copied to Shiori Yamao as Cho Eki Cho asserted. Andy’s purpose of providing Takai Takashi with the documents was to link up the latter with Cho Eki Cho so that the two might have discussions. Andy hoped, however, that if the bills were found acceptable, they would be put forward before the Diet. Takai Takashi said that he would talk to Shiori Yamao and other like-minded members of the Diet straightaway.[1048]

794.  In around late February 2020[1049], Andy and Cho Eki Cho met with Shiori Yamao in her office in Kokkai Gijido, Tokyo. Also present at the meeting was Kuramochi Rintaro (who assisted Shiori Yamao in legal matters) and “Village Head” (a Hongkonger). That was the first time that Andy met with Shiori Yamao. Originally, it was the intention of Andy’s side to present the draft bills of Cho Eki Cho to Shiori Yamao. However, Shiori Yamao had prepared her own version of a human rights and democracy bill. Although Shiori Yamao’s draft bill was not specifically targeted at Hong Kong, Andy understood that her bill could achieve a deterrent effect. At the conclusion of the meeting, Andy and his company considered that Shiori Yamao’s bill was even better than that of Cho Eki Cho. It was therefore agreed that the Japanese side and the Hong Kong side would all try and seek other Japanese MPs to approve the former.

795.  However, during the Covid 19 pandemic, things came to a halt and Shiori Yamao was not able to present her bill to the National Diet of Japan yet. Then in mid-April 2020, Andy sent emails to Takai Takashi and his wife Hasegawa[1050]as well as Inoue Satoshi and Yamazoe Taku[1051], seeking their support of Shiori Yamao’s draft bill. At that time, there was a proposed visit by Chairman Xi Jinping to Japan as a state guest and a discussion within Japan about it. Therefore, Andy said in his emails that there was no freedom of speech and the press in China.

796.  In the summer, “SWHK@JPN”, “Act with Hong Kong” and “Honkon No Yoake” together with a group of Japanese MPs held an event announcing that they were prepared to present Shiori Yamao’s bill. Agnes Chow also gave a video message in support.

Inter-Parliamentary Alliance on China (“IPAC”)

Luke de Pulford and the setting up of IPAC

797.  Andy said that Luke de Pulford was involved in the setting up of IPAC which comprised a collection of different parliamentarians from various countries who were concerned about the issues of China. There were meetings on the trade dependence of various sectors on China, meetings about the NSL that had already been enacted and discussions within a sub-group among the parliamentarians concerning extradition treaties with Hong Kong and the Mainland. Before IPAC became public, Andy was approached by Luke de Pulford for assistance in the setting up of its website.[1052] Andy agreed to assist in his personal capacity.[1053] 

798.  Andy said that Luke de Pulford had also asked him to get in touch with the parliamentarians in Japan to see if any of them were to join IPAC. On 29 May 2020, Andy informed that Shiori Yamao was “on board” and that she would “revert with the best names to take the co-chair positons”[1054]. On 31 May 2020, Andy further informed that Gen Nakatani also agreed to join IPAC[1055] and asked, “for media, do you need support at HK side”. By this, Andy meant if media support was necessary for the launching of IPAC. Luke de Pulford replied[1056]  ,

“Yes. I’m just briefing Jimmy L. Will give you press release.”

Andy understood that “Jimmy L” was D1.

799.  On 5 June 2020, IPAC was officially launched.

Mark Simon’s advice and SWHK joining Central Secretariat of IPAC

800.  Sometime later, Andy informed “T” (Wayland) about it. During Andy’s discussion with Wayland, it was said that since Andy could have direct access to Luke de Pulford and IPAC, if he could further develop this connection, then the international lobbying would be much more efficient. Andy and Wayland agreed that the former should continue to provide assistance to IPAC.

801.  Andy identified the TG records of his discussions with Luke de Pulford on his role and the interest of SWHK taking part in IPAC. On 6 June 2020, Andy wrote, among other things, the following[1057]:

“2. SWHK is interested in working with IPAC beyond my clandestine role as website developer, and we are open to ideas. I’m not sure whether a motion to put SWHK as an organization-advisor would pass our side but this could be a direction that we could explore, if IPAC side is receiptive to the idea, that is.”

Luke de Pulford agreed. He added[1058]:

“You’ve been invaluable. But I think we need to keep it quite clandestine.”

802.  According to Wayland, at the time, his advice was sought by Andy as to whether Andy should join IPAC in his personal capacity or in the capacity of SWHK. Wayland in turn asked Mark Simon. The latter strongly supported Andy joining IPAC. However, Mark Simon opined that if Andy joined in his personal capacity after the NSL, he would very likely be a target and that would be very dangerous for him. Therefore, he suggested that the entire SWHK join IPAC. Wayland relayed Mark Simon’s advice to Andy.

803.  As it turned out, on 14 June 2020 SWHK announced that it had joined the Central Secretariat of IPAC.[1059]  That move, Andy said, added one more direction to the international lobbying of SWHK, namely, reaching out to international parliamentarians.

The “SWHK IPAC” chat group and the discussion about “Magnitsky”

804.  On 21 June 2020, a TG group “SWHK IPAC” was set up by Andy (display name “RIP@?”), members of which consisted of Luke de Pulford and SWHK members including Shirley Ho (display name “surely deep dive Pls tag”), Finn Lau (display name “HK再離開一下”) and others[1060]. That was for the purpose of facilitating the discussion between SWHK members and Luke de Pulford on matters concerning IPAC.

805.  In the first message of the “SWHK IPAC” chat group, Andy wrote[1061]:

“The first order of business here is that we’d like to coordinate expected IPAC responses to Hong Kong, most recently regarding the National Security Law; including lack of responses (in which case SWHK can fill the gap)”

Luke de Pulford asked, “what is the single most powerful thing which IPAC could do on HK?”[1062] and he thought that it would need to be sanctions related. As to this, Andy floated the following for discussion:

“Magnitsky - sanction at individual level; or economic sanction at the country level, would have been most powerful, and not unachievable if we get enough signatory MPs who raise this at Parliaments”[1063]

“Shiori herself raised Magnitsky, not economic independence from China, in the meeting call, I’d say if we were to persuade Japan to do one act, it would be coordinated global- Magnitsky, this time global as in multiple countries enacting it together”[1064]

“The next item on the list should be cancelling special status, but this is not far from lifeboat - both gives up the city”[1065]

“… (we should call for Magnitsky as the major item), so that we would appear to have some achievements (through WTO) while Magnitsky is going on”[1066]

“cancellation of bilateral trade deals or treaties beneficial to China (at the country level), and where possible (i.e. enough votes), expulsion from international organizations (WTO etc. - or kick them from UN or strip them of their veto vote, if this is even possible)”[1067]

“We could expel Chinese students or other citizens from home countries, but this sounds even crazier than Magnitsky, at least Magnitsky hits perpetrators not ordinary innocent citizens”[1068]

806.  On 26 June 2020, there was a lengthy exchange in TG between Luke de Pulford and Andy. The former said, “The question now is how to punish, divide and conquer. And how to use the terrible things that will happen in HK over the next six months to kill the CCP.”  And in that event, “HK will be collateral.”[1069]  As to this, Andy replied, “this we know and we are very happy to play this role”[1070]. Andy explained in Court that by this, he meant “mutual destruction”. Luke de Pulford continued to say,

“The best we can now hope for it (sic) global recalibration, to punish China into division and political change. And the best catalyst for that is severe conflict”.[1071]

807.  At the time, it was expected that NSL would come into effect and Luke de Pulford asked Andy to predict what would happen in Hong Kong. Andy answered that a large scale demonstration was unlikely to happen. Andy lamented,

“so far we haven’t seen concrete sanctions falling upon, say, Dover or other perpetrators; they still roam free and all we get are ‘condemn’ statements”[1072].

“Dover” was a senior police officer involved in suppressing protests in Hong Kong. Luke de Pulford said, “The NSL is forcing the recalibration of the China relationship” and “We actually need more of this if we are going to take down the CCP.” As to this, Andy replied,

“the thing is, our aim is to first establish HK, taking down CCP might be a secondary motive but it will never be a strong enough motive for HKers to consider sacrificing themselves. We campaign for Hong Kong, not for some democratic change at Beijing level.”[1073]

Luke de Pulford intending to take down CCP

808.  What followed was a debate between Luke de Pulford and Andy as to what to do next. Luke was of the opinion that the change should first happen over there in China and it was only then that Hong Kong’s problem could be resolved. On the other hand, Andy was of the view that no matter if there were changes in China or otherwise, his focus was on Hong Kong itself. He said that if they advertise “how to take down CCP” and asked HKers to sacrifice themselves, this would fall on deaf ears.[1074]  Luke de Pulford then said that[1075]:

(1)  in politics, one needed an enemy and that the CCP was the “enemy” of the freedom of Hong Kong; and

(2)  “the way to beat the enemy is to divide his troops, hit him very hard and occupy his ground.” 

809.  Andy replied by saying that this was exactly what they had been trying to do and why sanctions have been on top of their wish lists, especially “targeted sanctions”.[1076]  Andy explained in Court that by “targeted sanctions”, he meant some specific sanctions against individuals or entities, in contrast to some general sanctions against some territories, because the effect of “targeted sanctions” on civilians would be less.

SWHK’s statement against the NSL

810.  On 29 June 2020, Andy forwarded to Luke de Pulford a statement prepared by SWHK condemning the imposition of the NSL in Hong Kong. Among other things, the statement called on foreign countries to:

•  Introduce “Magnitsky-style” targeted sanctions against Chinese and Hong Kong officials, individuals, and organisations who they said were complicit in human rights abuses, erosion of freedom and undermining of the rule of law in Hong Kong. It was suggested in the statement that sanctions should include entry restrictions such as persona non grata designations, assets freezes, and restrictions on third parties from dealing with or acting for such persons;

•  Incentivise and support companies to relocate production lines and bases of operations to other democratic countries to reduce the economic dependency on China; and

•  Work with the aim of decoupling from Chinese influence economically and re-examine the involvement of Chinese capital in strategic sectors

811.  Andy asked Luke de Pulford to help gather signatories supporting that statement.[1077]  The English and Cantonese version of the statement had already been posted on the website “Anti-NSL” which was created by Andy before the enactment of the NSL.[1078]  The statement was endorsed by a number of Hong Kong district councillors and some members of the House of Representatives (including Shiori Yamao) of Japan. After the promulgation of the NSL, Andy continued to update the list of signatories. The final list included people like Leung Chung Hang Sixtus, Benedict Rogers and a number of members of the House of Commons of Canada.

812.  Close to midnight between 30 June and 1 July 2020, having read the NSL, Andy told Luke de Pulford by Signal that the NSL was “as bad as feared, only that there’s no capital punishment” [1079]. Luke de Pulford asked for a short analysis of the law. Andy said, “it’s worse than we thought” and “you have committed a crime according to the text :)”.[1080]  In cross-examination, Andy was asked why the word “you” in that message was in italics, Andy explained that it was to emphasize that even though Luke de Pulford was not a Hong Kong citizen, nor was he within the geographical jurisdiction of Hong Kong, according to his understanding, he would still be caught by the NSL and its provisions were wide enough to cover what Luke de Pulford was then doing.

IPAC’s responses to the NSL

Suspension of Extradition Agreements

813.  On 2 July 2020, Andy texted Luke de Pulford by TG and asked,

“Is it a good idea to lobby for governments to cancel their mutual legal assistance or fugitive surrender arrangements with Hong Kong?”

Andy went on to provide a list of countries that had mutual legal assistance treaties with Hong Kong[1081] and he noted that for those countries which had their parliamentarians in IPAC, all of them had mutual legal assistance treaties with Hong Kong, except Lithuania and Norway.[1082]  Luke de Pulford replied that he had been working on this.[1083] In cross-examination, Andy was asked if he had formed any view as to whether it would be illegal to lobby. He answered that he was reckless as to whether or not it would be illegal. He was asking Luke de Pulford, because of the “global jurisdiction” provided for in Article 38 of the NSL, whether there should be a review of the mutual legal assistance or fugitive surrender arrangements in order to avoid political prosecutions of the citizens of those countries.

814.  On the following day, an IPAC subgroup was formed to discuss the extradition agreements with Hong Kong or China. Andy also sat in that meeting which was chaired by Iain Duncan Smith.[1084] It was decided that the parliamentarians would respectively go back and follow up on the matter.

815.  On 4 July 2020, Luke de Pulford informed Andy that Canada had revoked its extradition treaty with the HKSAR[1085]. He also sent Andy a Twitter link about the news of the meeting of 16 IPAC co-chairs (including Garnett Genuis and Irwin Cotler)[1086] and asked Andy to tell SWHK to retweet it.[1087] In fact, SWHK had already covered in its website the news about Canada suspending its extradition treaty with Hong Kong and treating export of sensitive goods to Hong Kong in the same way as those destined for China.[1088]

816.  From the time Andy became the website builder of IPAC until the time he was arrested, he was the only person who could update the website. He would receive information for such updating from the emails of Luke de Pulford, Sam Armstrong or Andrew Lawrence. The latter two were members of the Central Secretariat of IPAC. Andy identified the following statements made after the enactment of the NSL which he, at the request of Andrew Lawrence, posted in the website of IPAC:

•  On 6 July 2020, a joint statement by Simon O’Connor MP and Louisa Wall MP of New Zealand, as co-chairs of the IPAC for New Zealand calling on the New Zealand Government to confirm that there would be no extraditions made to Hong Kong under the NSL[1089]; and

•  On 10 July 2020, an article by Kevin Andrews (of the Australian House of Representative) titled “The Bear in the Room”, in which he said, “The Chinese Communist Party expresses one narrative but practices another. At last Western leaders are talking about the bear in the room. In Australia, this includes the strengthening of our security apparatus and the examination of effective legislation, including a Magnitsky-style approach to human rights abuses”[1090].

817.  On 19 July 2020, Luke de Pulford posted a Twitter link in the “SWHK IPAC” chat group[1091]. The Twitter post[1092] read,

“Excellent report from @Gabriel_Pogrund suggesting that the UK may SUSPEND its extradition treaty with #Hong Kong this week. Thank you to #IPAC co-chair @MPIainDS for tabling an amendment to the Extradition Bill last week and to @SarahChampionMP for supporting”. [1093]

818.  The Twitter post was attached with a report by Gabriel Pogrund in Sunday Times saying that “Ministers are preparing to suspend an extradition treaty with Hong Kong after Beijing imposed a new security law to quiet pro-democracy campaigners” and “Tomorrow Dominic Raab, the foreign secretary, will signal the government has concerns about the Hong Kong extradition treaty, which Beijing could use to try to silence dissent around the world.”[1094]

Statement condemning disqualification of LegCo candidates and adjournment of LegCo election

819.  On 30 July 2020, after discussing with Luke de Pulford in the TG chat group “SWHK IPAC”[1095], Andy posted a statement on IPAC website condemning: (1) the decision of the HKSAR Government to disqualify certain candidates from the camp of the democrats; and (2) the anticipated delay of the LegCo election in September.[1096] Andy also helped in translating the statement into Japanese for Shiori Yamao so that she could do what she wanted with it in JPAC[1097]. Meanwhile, Luke de Pulford also asked members of the chat group to share the Twitter link of an open letter by Iain Duncan Smith MP written on behalf of IPAC UK membership to the Foreign Secretary Dominic Raab seeking sanctions against the alleged obstruction of democratic process in Hong Kong[1098].

820.  On 31 July 2020, Andy shared the link to the “Foreign Secretary’s statement on Hong Kong election disqualifications”[1099]. This was noted by Luke de Pulford who lamented that it was “Too little. Too late.”  Another member in the chat group “Richard Deckard” responded, “Fate was sealed quite a while ago. The difference I guess is whether we can get sth out of it like destroying ccp once and for all.”  Another member “surely deep dive Pls tag” (Shirley Ho) expressed total agreement. “T C” also agreed, “so it’s all abt external sanctions now.”

Seeking to weaken ties with China

821.  On 4 August 2020[1100], Luke de Pulford shared in the “SWHK IPAC” chat group the link to another statement of IPAC. That was about an IPAC co-chair meeting held on 3 August 2020 with Senator Kimberley Kitching and Andrew Hastie MP from Australia as the convenors.[1101] The statement said,

“A few hours ago 22 #IPAC co-chairs from 13 legislatures met to discuss ‘reducing strategy dependency’ on China chaired by @kimbakit and Andrew Hastie MP. In addition, #IPAC was privileged to hear from @nathanlawkc and @Ray_WongHKI”.

Interfering with affairs of Hong Kong

822.  Andy had attended that meeting as an observer and he confirmed that “Nathan Law” was Law Kwun-chung and “Ray Wong” was Wong Toi-yeung. At that meeting, Ray Wong and Nathan Law briefed the attendees on the situation in Hong Kong after the enactment of the NSL. Following that, there was a discussion on potential avenues for future action which included,

“discouraging British judges to cease deployments in Hong Kong, monitoring activists who have been prevented from leaving Hong Kong and supporting shadow parliaments of Hong Kong citizens abroad.”[1102]

In the minutes of that meeting, it was recorded that[1103]:

“Co-Chairs approved the following campaign strategy and timeframe.

• Each IPAC member legislature should determine which two industries have the greatest need for a reduction of dependency, and mount a campaign on it.

• IPAC should produce a short paper in early September on reducing strategic dependency.

•  The nature of the campaign will differ in each legislature according to local contexts.”

In the “AOB”, it was recorded, among other things, that:

•  “Gen Nakatani gave an update of the work of the Japanese Parliamentary Alliance on China, who have been in contact with activists in Hong Kong and are pressing for Magnitsky legislation to be used against those who have broken international laws.”[1104]

Japanese Parliamentary Alliance on China (“JPAC”)

Launching of JPAC

823.  On 19 July 2020, Andy informed in the “SWHK IPAC” chat group[1105] that on 19 June 2020 Gen Nakatani and Shiori Yamao had officially announced Japan’s “satellite IPAC”. The group was called “JPAC”, which was a non-partisan union of Japanese MPs. Andy explained in Court that the purpose of setting up “JPAC” was for Japanese MPs to come together to discuss China policies.

824.  In a separate message on 22 July 2020, Andy told Luke de Pulford that JPAC would hold an official press meeting to announce its establishment on 29 July 2020[1106]. Andy also informed the chat group that at the launch of JPAC, some activists in Japan (who were not themselves MPs) would make speeches calling for: (1) lifeboat policy; (2) Magnitsky; (3) suspension of Japan-HK mutual legal assistance treaty; (4) prevention of Japanese businesses/organisations from providing assistance to HK Government.  

825.  On 29 July 2020, Andy announced the official launch of JPAC in the “SWHK IPAC” chat group and provided a list of nine members, all of them (including Shiori Yamao and Gen Nakatani) were Japanese parliamentarians[1107]. Andy said that “Shiori’s office doesn’t have enough English-speaking staff capacity to handle English materials; we [HKer volunteers] are her de facto English staffers for now”.[1108] Andy attached JPAC’s Articles which explicitly said that JPAC was established in order to work closely with IPAC[1109].

Linking “Bill Browder” and Shiori Yamao

826.  According to Andy, in fact back in early July 2020 Luke de Pulford had tried to connect Shiori Yamao with a person named “Bill Browder” to discuss Magnitsky legislation. However, there had been no answer from Shiori Yamao until 27 July 2020 when she agreed to get in touch[1110].

827.  On 3 August 2020, Luke de Pulford informed in the “SWHK IPAC” chat group[1111] that he wanted to link up “Bill Browder” with Shiori Yamao, saying that the former wanted to help the latter on “the Magnitsky stuff”. Luke de Pulford described “Bill Browder” as a “dynamo” who also had “a huge amount of money”. On the following day, Luke de Pulford set up a Signal chat group called “Magnitsky Japan” consisting of himself, Andy and “Bill” or “BB”.[1112] After Andy had a video meeting with “Bill Browder” using “Jitsi”, he informed in the chat group that an in-person meeting with Shiori Yamao would be arranged to update her on the support that Luke de Pulford and “Bill” could offer and he expected that they would have to work out a strategy with her and other legislators regarding the strategy, tone, and timing to push the Magnitsky-like act.[1113]  Subsequently, Andy helped in arranging a “Jitsi” meeting between Shiori Yamao and “Bill Browder” scheduled for 12 August 2020.[1114] 

Andy’s decision to continue in spite of the NSL

828.  After the promulgation of the NSL, Andy and Wayland still maintained their contact with each other.

829.  On 23 July 2020, there was a series of exchanges by Signal between Andy and “T”. Wayland wrote[1115],

“I am not sure about the implication of NSL on you. Yet, it does not we don’t do anything under the new law.”

When Wayland was asked about the aforesaid message, he clarified that the word “mean” should be added to the last sentence after “does not”. Wayland said that he brought up the matter with Andy as there were still many members of SWHK overseas calling for sanction and he believed that what they were doing then had the risk of violating the NSL. He disagreed that he thought at the time that there was a difference between what local Hong Kong people and people overseas might be able to do respectively. When asked whether it was his intention to deliberately take action he knew to be in breach of the NSL, Wayland answered that it depended on who were beside him. If some people he knew, for example, Andy and D1, were still working hard for the sake of Hong Kong, he thought that eventually he would also engage in it. He said that when he texted Andy, he was of the view that they should continue to push forward sanction. This was because people of the standing like D1 was fearless and even set himself as an example. Therefore, Wayland thought that something should be done. However, Wayland was still contemplating at the time to what extent things should be done.

830.  Returning to the Signal exchanges, according to the evidence of both Andy and Wayland, Andy informed “T” that SWHK was considering sending him to work under Sharon Hom (in US) in an NGO (through the introduction of Shirley Ho) for two years. The other option was to assist Luke de Pulford in IPAC and to push forward sanction. Andy was not sure about that and he sought “T” ’s advice[1116]. Wayland thought for a while and then told Andy that he should help Luke de Pulford, as previously both D1 and Mark Simon had said that IPAC was very important and that international lobbying work should be continued. Wayland believed that Andy eventually took his advice, as he did not go to the United States. Wayland also said that he had spoken to Mark Simon about Andy who “was being very stubborn, would like to stay in Hong Kong.”  In cross-examination, it was put to Wayland that he had not mentioned in any of his video-recorded interviews that he had the aforesaid talk with Mark Simon about the situation of Andy[1117]. Wayland said that he had not been specifically asked by the police about this conversation with Mark Simon which was before Andy’s arrest.

831.  Andy told Wayland that there was a need to weaken Hong Kong and China. On the other hand, there was a need to gain support from outside. However, after that, there would be a power vacuum and someone would have to go up there as well[1118]. They went on to discuss who would be the suitable candidates to come out to provide impetus to the social movement at the time. A number of activists were mentioned but none of them seemed to be available or willing[1119]. Andy suggested, “At least one front person is needed to leave Hong Kong (and) set up a government elsewhere”[1120]. In cross-examination, Andy was asked whether his understanding of the impact of the NSL developed by the time of his aforesaid Signal conversation with “T”. Andy answered that by that time he suspected that he had already been targeted by Beijing as a political enemy. Andy reckoned that even if he did not continue with the advocacy, he would still be arrested. Therefore, he decided that he should continue what he had been doing. Andy agreed that the idea of forming a “government-in-exile” was never something that SWHK published on its website.

832.  On 3 August 2020, Wayland messaged Andy by Signal and asked whether Andy could help with liaising with Alan Brinker, so that he (Wayland) could have a chat with him[1121]. Alan Brinker was a staff member of the US Consulate General in Hong Kong whom Andy had met at the meeting with Rick Scott. Wayland told Andy that the purpose was not to provide information but to pump information from Alan Brinker[1122]. Wayland explained that at that time within SWHK there were voices that Andy should leave Hong Kong. Wayland hoped that he could succeed in the connections that Andy had in Hong Kong. This was because D1 had told them about the need to know the thoughts of foreign governments and to establish connections with people “beneath the table”. Wayland believed that Alan Brinker was such a person and therefore first-hand information from him would be very important to them. Secondly, at that time everyone would like to know, as far as the US side was concerned, whether they had any opinions about the recent disqualifications of certain candidates from the 2020 LegCo election.  

833.  On 10 August 2020, there was a series of Signal exchanges between Andy and Wayland. They talked about the news of D1’s arrest on that day. Andy told him that someone (whom Wayland gathered was “Madison”) had asked whether the holder of the account “il_k” (used by Wayland in the TG group) should be kicked out of the group, as that account holder appeared to be closely connected with D1[1123]. (It was Wayland’s evidence that he managed to be added to the TG group of the SWHK US front with the agreement and support of Mark Simon and D1) Andy noted that, “… every time someone gets into trouble(,) someone will ask me and you  to consider leaving.”  In reply, Wayland told Andy that as a leader, he had to be the last one standing and he asked rhetorically, if he left, who would lead the team[1124]. On the other hand, Wayland urged Andy to leave, as “we can’t afford one more loss in international line.”[1125] Wayland explained that by “we” here, he included the international front that was being fought by SWHK all along, D1 and Mark Simon. In this regard, Wayland mentioned in Court that he had discussed the situation of Andy with the following persons:

•  Shirley Ho of the US front, who said that she had made various attempts with a view to taking Andy out of Hong Kong, including her offering Andy a job in US. Yet, Andy refused to leave. According to their tacit understanding, Wayland should be the last one staying in Hong Kong; and 

•  Mark Simon (in around July and August 2020) opined that Andy was very stubborn and would like to stay in Hong Kong.

Wayland said that he intended to take up Andy’s position in Hong Kong after Andy’s departure.

834.  Returning to the aforesaid Signal exchange, Wayland told Andy that, “Some businessmen and politician are cutting ties with Jim”[1126]. This, Wayland said, he was told by Mark Simon, with whom Wayland communicated at least once a week after the promulgation of the NSL through Signal calls. At that time D1 had been arrested. A lot of people who previously said would support him cut ties with him. Mark Simon said that it was very tough at the time. Wayland considered D1’s arrest dealt a heavy blow to the international front of SWHK. Without D1’s political connections, it would be difficult to obtain any further internal information of the US Government and to maintain the unity of the international front in the future.

Andy’s arrest

835.  Shortly after the aforesaid Signal exchanges on 10 August 2020, Andy was arrested by the Police. Two days later, he was released on bail on 12 August 2020.

D1’s arrest

836.  On 10 August 2020 which was the date of D1’s arrest, Andy messaged “T” (Wayland) and said that a member (Madison) asked whether there is a need to kick “T” out of TG, “since Fat Guy Lai into trouble.”  That, Andy said was because someone discovered that the account name “il_k” (i.e. Wayland) was too well connected and it was guessed that it belonged to one of “Fat Guy Lai’s sons”. Andy understood that “Fat Guy Lai” was a reference to D1. Wayland told Andy that he was not D1’s son and he went on to say, “As a leader, I have to be the last one standing.”  “T” asked, rhetorically, that if he left, who would lead the team(s)[1127].

Arrangement for Andy to flee

837.  Andy agreed that he was arrested on 10 August 2020 and released on bail on 12 August 2020.

838.  Andy said that after his release on police bail on 12 August 2020, “T” said that he would make arrangement for Andy to leave Hong Kong. On 18 August 2020, Andy got a message asking him to go to Lohas Park in Tseung Kwan O. Later, Andy was provided with the contact details of a man named “Kyle” who was the landlord of a safe house where Andy was subsequently taken to from Lohas Park.

839.  On 23 August 2020, Andy was asked by someone to go down to a pier in Po Toi O and he was given the details of a ship owner. Andy was told that upon his arrival in Taiwan, he should surrender to local authorities and that his personal information had been sent to Taiwan’s Mainland Affairs Council. He was also told that if he could make it in time, then there would be a Czechia delegation visiting Taiwan at the time, and he could get on the plane together with them and leave and find a way to go to London. As it turned out, Andy’s attempt to flee failed and he was arrested by public security officers in the Mainland’s waters for crossing the Mainland border illegally.

Other documents found in Andy’s computer

840.  Andy was also asked about the following documents which the Police found in his computer. The first two of them, Andy said, were provided to him by someone from SWHK.

“APPG inquiry report”

841.  The first one was the Chinese[1128] and the English versions[1129] of a press release of “All-Party Parliamentary Group on Hong Kong” (“APPG”) dated 4 August 2020 with the caption: “APPG inquiry report reveals Hong Kong tolerated the abuse of humanitarian and medical workers”. The first paragraph of that documents said,

“In March 2020 the APPG on Hong Kong launched an inquiry into possible human rights abuses against humanitarian aid workers in Hong Kong during the 2019 protest.”

It was recommended, among other things, that:

“The UK should urgently impose Magnitsky-style sanctions on those responsible for permitting the excessive police violence at high level in the administration, including but not limited to Chief Executive Carrie Lam and the Commissioner of Police.”

At the last paragraph, it said,

“Baroness Bennett, Alistair Carmichael MP, Sarah Champion MP and a key witness, Dr Darren Mann, will be speaking at this inquiry launch and taking question from the press.”

In the Editor’s Notes, there was a reference to “Fight for Freedom, Stand with Hong Kong” and it said that “The work of the Whitehouse Consultancy for the APPG on Hong Kong is funded by Fight for Freedom Stand with Hong Kong.”[1130]  In the Chinese version, the Chinese name for “Fight for Freedom. Stand with Hong Kong” was 「攬炒團隊」. However, Andy said that he was not involved in the said inquiry by APPG and he did not know if there was in fact such an inquiry.

SWHK’s press release

842.  The second document was the Chinese[1131] and the English[1132] versions of a press release of SWHK also dated 4 August 2020. It referred to the aforesaid APPG press release. In the last paragraph, it said, “We further support the APPG’s call for Magnitsky-style sanctions against those responsible for the excessive police violence and a more discerning BNO immigration process for those responsible for and complicit in human rights violations in Hong Kong.”[1133]  Andy said that this SWHK press release had been put on the internet.

“Investigation Report of Potential Sanction Targets for Hong Kong Human Right Democracy Act, Phase 1 – The Gang of Thirty” [1134]

843.  This third document was said to have been prepared by the “HK Sanction Initiative and an online author ‘The Writer’”. Andy said he could not remember when, how and from whom he got this document. He said also that after he had got the document, he did not do anything with it.

Cross-examination about Mark Simon

844.  In cross-examination, Andy agreed that he had never met or spoken with D1 either before or after the enactment of the NSL. He also agreed that he might have been copied in on emails with Mark Simon, but he did not have any direct email communication with the latter. He was also in two WhatsApp chat groups of which Mark Simon was also a member, namely “Coffee on Sunday”[1135] (concerning the meeting with Rick Scott) and “HK Sunday meeting” [1136] (which was also about that meeting). He had no contact with Mark Simon at all after 1 July 2020. In neither of those communications had he talked with Mark Simon about imposition of sanctions, blockade, ceasing mutual assistance or anything of that kind in the messages. At the meeting with Rick Scott, no one (including Andy) made any specific request for any particular action from the United States. During the meeting, Mark Simon did not talk much.

845.  Andy also agreed with counsel that during the period from 1 June 2019 to 30 June 2020, there was never any consensus within SWHK that he should go and do anything illegal on behalf of that organization. During that period, he did not agree with anyone that he would go and do anything illegal.

Chapter 20 – D1’s association with Wayland

Introduction

846.  We have already referred to Wayland’s evidence as to how he first got in touch with D1’s assistant Mark Simon and subsequently also with D1 himself. According to Wayland, he met Mark Simon personally on the following occasions:

(1)  sometime in July 2019 (at a café in Mandarin Oriental Hotel in Central);

(2)  sometime in December 2019 (at Hyatt Hotel in Shatin); and

(3)  sometime in April 2020 (at Murray Hotel).

847.  Moreover, based on the WhatsApp messages between Wayland and D1 and other objective evidence (which we will come to shortly), there can be little dispute that Wayland personally met with D1 on the following six occasions:

(1)  18 October 2019 (in a Japanese restaurant in Sheung Wan)

(2)  13 November 2019 (in D1’s home)

(3)  27 November 2019 (in D1’s car parked near Supreme Court Road)

(4)  31 December 2019 (in D1’s car parked near Supreme Court Road)

(5)  11 January 2020 (in D1’s villa in Yangmingshan, Taipei)

(6)  16 June 2020 (in Next Digital Building)

The dispute is about the contents of their conversation in those meetings.

848.  Apart from the aforesaid meetings, Wayland also communicated with D1 and Mark Simon through WhatsApp which he was asked about in his evidence. In order to present a whole picture of Wayland’s association with D1 and Mark Simon, we will deal with this part of Wayland’s evidence in a chronological order insofar it is convenient to do so. However, some repetitions of what we have already covered in other chapters may be unavoidable.

First Meeting with Mark Simon

849.  We have already covered Wayland’s evidence as to how he first got in touch with Mark Simon through the introduction of Martin Lee during the G20 newspapers advertisement/crowdfunding campaign in late June 2019.

850.  Afterwards, in July 2019 at a café in Mandarin Oriental Hotel in Central, Wayland met with Mark Simon who took his son along with him. Mark Simon introduced himself as D1’s assistant, saying that he basically would carry out his boss’ orders. Mark Simon commended highly the G20 international advertising campaign, saying that he and D1 were very satisfied with its result and effect. He went on to talk about the future direction of the publicity literature campaign, saying that it should be a continuation of the effect of the G20 advertising campaign. He gave the example of holding exhibitions and said that not everyone would read newspapers. He said that if Wayland could work more in this area, this would be in line with their political ideology and they were willing to provide financial assistance as well as human connection and media assistance. Mark Simon did not explain in detail what he meant by political ideology but he emphasised the term “democracy” several times.

851.  Mark Simon asked Wayland whether he would continue to take part in publicity literature work and Mark Simon talked about local publicity literature work as well as international lobbying. At that time, Wayland did not know much about lobbying and therefore he told Mark Simon that he would try and take part in newspaper exhibitions. Wayland was then given a brown envelope containing some invoices and receipts relating to one Canadian account, one Hong Kong account, and one Taiwanese account respectively.  

852.  Wayland was also asked by Mark Simon what he would like to do in future. He answered that he and one of his friends would like to do business. Mark Simon then asked if he had encountered any difficulties. Wayland said that it was very difficult to set up a bank account of an offshore company in Hong Kong. Mark Simon then replied, “It would not be very difficult. In fact, I can help you out. You can consider it to be a reward to yourself.” 

853.  In cross-examination, Wayland was shown Mark Simon’s immigration movement records which showed that the latter was out of Hong Kong until 24 July 2019. Wayland agreed that his aforesaid meeting with Mark Simon would be sometime after that date.

Martin Lee mentioning Wayland to D1

854.  There is some objective evidence that prior to D1’s first meeting with Wayland, he had already been told something about the latter and his source of information was Mark Simon. This evidence comes from the WhatsApp records of the “Martin, Jimmy and Mark” chat group. The details are as follows.

855.  On 23 September 2019, whilst discussing D1’s and Martin Lee’s upcoming US trip, Mark Simon asked[1137],

“WH NSC say they would be happy to see you/Martin, who else you bring. But no one will confirm whether President or VP will be around & what day is available. (Very normal).”

To this, Martin Lee suggested “What about Anson and “Wayland”[1138]. D1 asked who “Wayland” was. Martin Lee replied that “Mark” knew well”[1139]. Mark Simon then added:

“He’s the young man who is leading up the international newspaper campaigns.”[1140]

“He’s a very capable guy, but he likes to work behind the scenes.”[1141]

D1 sponsoring Wayland’s exhibition of newspaper cuttings

856.  In around the end of July 2019, Mark Simon texted Wayland and said that both he and D1 wanted to hold exhibitions of newspaper cuttings. Mark Simon asked Wayland to find the 20 newspapers for him relating to the G20 campaign and he mentioned Germany, New York and Taipei. Mark Simon said that they were willing to provide sponsorship. After that, Wayland went on to hold such an exhibition and he was assisted by some online friends and Andy. On 2 August 2019, Wayland got a reimbursement of HK$30,000 from Mark Simon.[1142] 

857.  In August, September and October 2019, Wayland held a number of street booths in Tai Po, Central, Tai Wai and Sham Tseng. In the beginning, the booths displayed the G20 newspapers. Gradually, more publicity literature relating to the anti-ELAB movement was displayed and reimbursement of the expenses was obtained from Mark Simon. Wayland was shown a personal cheque in his favour signed by D1 in the amount of HK$144,100 dated 9 October 2019[1143]. Wayland said that the cheque was received around 11 October 2019 and that was to reimburse him for the aforesaid exhibitions and street booths.

First meeting with D1

858.  Sometime after Wayland’s first meeting with Mark Simon, Wayland was asked by Martin Lee to have lunch with D1 at a Japanese restaurant in Sheung Wan. That Japanese restaurant, Wayland was told, was run by the younger brother of Albert Ho Chun-yan.

859.  Whilst Wayland in his evidence-in-chief put the date of his first meeting with D1 in July 2019 and disagreed in cross-examination that the meeting in fact took place on 18 October 2019, his evidence on this point is apparently incorrect. In this regard, we have already noted D1’s WhatsApp message on 23 September 2019 in the “Martin, Jimmy and Mark” chat group which showed that D1 was not aware of who “Wayland” was at the time. Besides, Wayland only started to have WhatsApp communication with D1 on 18 October 2019[1144] and his very first messages to D1 were:

“Hello, elder Lai”

“This is Wayland”

On the other hand, D1’s reply message to Wayland was[1145]:

“Wayland,

Greet (sic) to have met you. Keep n touch. Cheers. Jimmy”

Judging from the above exchanges, it does not look like that the two of them had met long before.   

860.  On the other hand, there is objective and cogent evidence which supports D1’s evidence that the first meeting took place on 18 October 2019:

(a)  on 17 October 2019 which was shortly before D1’s trip to the US, D1 texted Mark Simon and said[1146]:

“Mark,

Hope you arrive well. Martin wants to have a meeting before we go with a young man in the frontier tomorrow at 12:30 in Jimmy’s Kitchen. He also wants Janet to attend the meeting, Can you contact her to be there at 12:30? Thanks. Jimmy”

(b)  D1 subsequently informed Mark Simon that Martin Lee had changed the venue of the meeting to “Albert’s restaurant”, which D1 said in his evidence was a Japanese restaurant called 「碗屋」 (“Wanya”)[1147].

(c)  On 19 October 2019, there was a WhatsApp message from Martin Lee saying, “Our young friend asked me to thank you for lunch. Bon Voyage! See you in DC!”. D1 replied by saying, “It was my pleasure meeting him. See you in DC. Cheers. Jimmy”[1148]  D1 agreed in cross-examination that this “young friend” was “Wayland”.

(d)  D1’s evidence that his first meeting with Wayland took place on 18 October 2019 is supported by his credit card statement which showed a payment of $853.1 at what appeared to be a Japanese restaurant called “Wanya”[1149], the owner of which, according to D1, was the brother of Albert Ho.