The defence should be allowed to call a witness to the stand for a second time “in the interests of justice,” the lawyer for jailed media tycoon Jimmy Lai has argued at the landmark national security trial.
But his submission drew the ire of the three judges presiding over the case, who questioned the defence’s failure to ask the former CEO of Apple Daily’s parent company about messaging app evidence in the first place.
The defence is seeking to ask Cheung Kim-hung about messages on Slack, a workplace messaging app that the paper’s staff used to discuss the newspaper’s editorial direction. The defence only obtained screenshots of the messages after Cheung finished testifying in early February.
Prosecutor Anthony Chau on Monday suggested that Lai’s team had “deliberately refrained” from seeking out the messages, prompting judge Alex Lee to warn the prosecution against making unfounded allegations.
76-year-old Lai is on trial for two counts of taking part in a “conspiracy to collude with foreign forces” under the security legislation, and also for conspiring to publish “seditious” materials under a colonial-era law.
The self-made millionaire’s media outlet, which was forced to close in June 2021 after senior staff were arrested, faces the same charges. Apple Daily’s newsroom was raided twice, and its assets were frozen.
Judge Alex Lee had asked how Lai’s trial could be deemed unfair if the defence was not allowed to call Cheung to the stand. Senior Counsel Robert Pang argued on Tuesday that the Slack records were a “material and relevant” form of evidence that should be put to Cheung in the interests of justice.
Pang also said that the defence could, so far, only refer to evidence brought by the prosecution.
However, judge Susana Maria D’Almada Remedios said the prosecution did not know about the use of Slack either – until it was mentioned earlier in the trial – saying the defence could not “shift the blame” onto the prosecution.
Toh also said that what mattered was whether the defence had a “good reason” as to why it did not ask Cheung about the Slack messages when the ex-publisher was testifying. “Why [did you] not tell the court that you knew of the [messages] and that you wanted to wait for a few days to obtain the records?” asked Toh, raising her voice.
She added that the prosecution would also be entitled to question Cheung if the court allowed the defence’s application. “It is not just one way, it’s a level playing field,” she said.
‘They chose not to do it’
Pang on Tuesday also denied that the defence’s application to call Cheung to the stand was a “deliberate tactical ploy”.
“Why on earth would we take this tactical decision? We can be accused of being slack in our preparation, but there is no reason why the application can be refused,” he said.
Prosecutor Anthony Chau told the three judges that it was “not in the interests of justice” to allow the defence to call the ex-publisher to the stand. “Essentially, our contention is that there was something that the defence could have done, and they chose not to do it,” he told the court.
But judge Lee cited the defence’s submission as saying that it was the prosecution’s duty to look into the Slack records, to which Chau acknowledged that the burden of proof was on the prosecution. But he added that it did not possess the messages.
“But do you not have access to those records?” asked Lee, to which Chau said he did.
Pang, addressing the prosecution’s submission, said he had not heard “any articulation of what prejudice” would arise if Cheung was called to the stand again.
Toh then adjourned the hearing to 10.30 on Thursday morning to hand down its decision on whether the defence would be allowed to call Cheung to the stand. Police officers will also take the stand when the trial resumes.
Tuesday marked the 76th day of Lai’s high-profile national security trial. The tycoon faces up to life in prison if found guilty.
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