Thoughtcrime, they called it: Jimmy Lai's disturbing conviction in Hong Kong for, well, being Jimmy Lai

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Jimmy Lai before his imprisonment (AFP)

Yesterday, Hong Kong District Court Judge Amanda Woodcock convicted former Apple Daily owner Jimmy Lai, barrister Chow Hang Tung and activist Gwyneth Ho for inciting others to take part in an unauthorized assembly—a June 4, 2020 commemoration of the Tiananmen Sq crackdown. Judge Woodcock also convicted Chow and Ho of taking part in the unauthorized assembly, but Lai was charged only with incitement.

It is often the case that seasoned activists commit offenses to highlight the injustice of the law they are breaking. That may have been the case with Chow and Ho, two long-time activists who I admire deeply. But with Lai, there is no evidence whatsoever that he incited anyone to attend the assembly. Instead, Judge Woodcock appears to have convicted him simply for being a famous political opponent of the government. And in her written Reasons for Verdict, she did little to hide it.

A press conference, a candle, and a march to the park

Each June 4th since 1990, the Hong Kong Alliance in Support of Patriotic Democratic Movements of China has held a candlelight vigil in Victoria Park in remembrance of the Tiananmen Square crackdown. In 2020, for the first time, the police refused to authorize the vigil by citing the pandemic, though the decision came in the midst of the government’s broad clampdown on dissent.

On June 4, Lee Cheuk-Yan, the Alliance’s chairman, held a press conference near (but not in) the park. The public assembly law limits unauthorized gatherings to 50 people, less than the number of people present, so all agree that the press conference was a lawful gathering (at least under the public assembly law). After Lee’s speech, some of those present lit a candle. Members of the Alliance then broke into small groups and walked to Victoria Park.

In his speech, Lee reportedly urged the public to light candles across the city, which hardly sounds like inciting people to join an unlawful protest at Victoria Park. Nonetheless, the DOJ charged Lee and many of those present with inciting others to attend the unauthorized assembly that later formed in the park. Whatever the merits of those charges, Lee and three others present pleaded guilty to incitement on November 1. Lai, Chow, and Ho did not, and elected to proceed to trial.

According to Judge Woodcock, Jimmy Lai attended Lee’s press conference, and with several other attendees, he lit a candle for the cameras. But unlike Lee, he did not speak or otherwise signal any endorsement of anyone assembling in Victoria Park. And unlike Chow and Ho, Lai then “left [the group] at the end of this display of unity as the others set off on a slow march into Victoria Park.” (Court’s Reason’s for Verdict, Pgh 26)

Guilt by association

OK, so Lai attended a lawful gathering, said nothing, lit a candle, and left. Nothing to see here, right? Not according to Judge Woodcock, who convicted Lai along with the others.

Where things get rather dystopian is in Judge Woodcock’s reasoning. She ruled that because Lai “is a prominent public figure known to publicly share similar views as Hong Kong Alliance,” and because at the press conference, he was “surrounded and followed by photographers and reporters,” his very presence was an effort to incite others to attend the gathering. (Pghs 95-97)

In other words, by being a famous person who supports democratic political causes, who other people decided to follow and photograph at an event where someone else allegedly gave a speech inciting others to act unlawfully, Lai committed “a deliberate act to rally support for and publicly spotlight the unauthorised assembly that followed.” (Pgh 97)

If you’re thinking that doesn’t sound right, you’re not the only one. The ruling is plainly, insidiously wrong as a matter of law.

Thoughts and acts: Incitement under the law

English common law still applies in Hong Kong. Any first year Criminal Law student can tell you that incitement requires an actual “communication.” The foundational case for this point goes all the way back to 1873, R v. Banks, in which a woman was accused of inciting another to murder her child by mailing a letter to the potential hitman. In that case, the court ruled that the communication was intercepted before reaching its recipient, so there was no “communication,” and therefore no incitement (only an attempt).

Other cases over the years have expanded on what constitutes a “communication” for purposes of incitement law. It can be a “suggestion, proposal, request, exhortation, gesture, argument, persuasion, inducement, goading or the arousal of cupidity,” among others. S v Mkosiyana [1966] 4 SA 655, 658. That’s a pretty broad list of possibilities, but what it does not encompass by any stretch of the imagination is merely being present at someone else’s incitement.

Judge Woodcock was well aware of the requirement of a “communication,” as she took pains to state that Lee’s speech included a spoken request for others to come to Victoria Park (despite press reports that it did not, and the portion Woodcock quotes is far from conclusive), while conceding that Lai was only a member of “a group gathered” at the press conference. (Pghs 99, 104)

I’m going to throw a bit of Latin out here, and I hope you’ll stick with me. Almost any crime in the common law system requires the prosecution to prove both a mens rea—a guilty mind—and an actus reus—a guilty act. The actus reus is the actual act or omission—taking a ten-dollar banana without paying, for example—while mens rea is the knowledge or intent—intending to take the ten-dollar banana while knowing it costs ten dollars. If you take a ten-dollar banana, but mistakenly and genuinely believed it was in the free bananas bin, there is no mens rea and you have committed no crime. If you look at a ten-dollar banana and think you’d really like to take it, but before you make a move someone else comes along and grabs it out of the bin, there is no actus reus and you have also committed no crime. Without one or the other, the defendant must be acquitted.

The actus reus for incitement is the communication to others, and the mens rea is the intent to cause others to commit the associated crime. Each of Judge Woodcock’s grounds for convicting Lai goes either to mens rea or to someone else’s actus reus, rather than Lai’s:

• Lai was present at a press conference as a “prominent public figure known to share similar views as Hong Kong Alliance”—Lai’s mens rea. (Pgh 95)

• Lai’s prior persona drew the attention of “photographers and reporters”—others’ actus reus. (Pgh 97)

• Lee “made a speech” while Lai stood nearby with other activists and members of the press—another’s actus reus. (Pgh 99)

• Later in the evening of June 4, after the unauthorized assembly had concluded, Lai said he was “encouraged and inspired by the large turnout”—Lai’s mens rea. (Pgh 98)

Could Lai’s lighting a candle perhaps have been the actus reus? Judge Woodcock never claimed that in her reasoning, nor tied it to his supposed incitement. It was a legal act at a legal event that, if anything, would have encouraged others not to go to Victoria Park and instead, like Lai and the others, lawfully light candles elsewhere.

The only evidence mentioned that came anywhere close to a valid actus reus was an interview Lai gave several days before the event in which he said that people who are “not intimidated by [the police]” should continue to mourn, whether “in your own way or at Victoria Park.” But Woodcock only cites the interview as evidence of Lai’s mens rea— “an indication of why he was present at the [press conference]”—not of any “communication” constituting incitement, presumably because it occurred before the Alliance had decided whether to appeal the public assembly application.

No act, no crime

No one disputes that the gathering Lai attended was permitted by the public assembly law. No one disputes that Lai was silent at the press conference. No one disputes that Lai lighting a candle was lawful. No one disputes that Lai did not march to the alleged illegal assembly in Victoria Park with the others.

Yet, Judge Woodcock found, without a hint of self-awareness as to how it would look to sensible people everywhere, that a Hong Kong citizen “incited” an unauthorized assembly simply by attending an event as a famous person who generally supported democracy in Hong Kong.

Dystopian literature has an expression for criminalizing pure mens rea: a thoughtcrime.

When people show you who they are, believe them.