National Security: Hong Kong court allows police to search journalistic material stored on Jimmy Lai’s phones – Hong Kong Free Press | Team Cansler

Hong Kong police can search journalistic footage stored on media tycoon Jimmy Lai’s phones seized under a national security order, the Supreme Court ruled on Wednesday.

The Court of Appeal rejected Lai’s appeal of a failed legal bid attempting to block a search warrant approved by Chief Justice Peter Law under the Beijing-imposed national security law.

Jimmy Lai. File Photo: Studio Incendo.

Lai, 74, who founded the defunct pro-democracy tabloid Apple Daily, faces four charges, including two counts of conspiracy to collude with foreign countries or outside elements, one charge of collusion with foreign forces and one charge of conspiracy to collude print and publish sell, offer for sale, distribute, display and/or reproduce inflammatory publications.

Three companies linked to the tabloid also face charges. Six other defendants, former employees of Apple Daily or parent company Next Digital, pleaded guilty in the case.

Lai’s appeal was heard by Judges Jeremy Poon, Susan Kwan and Carlye Chu at the Circuit Court of Appeals last month.

Under the provisions of the National Security Act, a judge may issue a search warrant if he believes that “there is a reasonable suspicion that certain evidence will be found.”

Protection of journalistic materials not absolute

Senior Counsel Robert Pang, representing Lai, disputed the construction of “specified evidence” and argued that journalistic material – which is generally protected from police search – should not be included in the definition.

The Supreme Court. Photo: Candice Chau/HKFP.

The three judges ruled on Wednesday that “despite its importance for press freedom, the protection of journalistic material is not absolute.”

The court also has a role to play as a judicial gatekeeper and must balance the public interest in deciding whether to allow the search and seizure of journalistic material and whether to add conditions to the warrant, the judges ruled.

“Although journalistic material is always subject to safeguards and procedural safeguards based on the public interest and due judicial scrutiny, it is not immune from search and seizure in the investigation of a crime,” the judgment reads.

“The same must also apply in principle to crimes that endanger national security.”

Excluding journalistic materials from the definition of “specified evidence” would also reduce the effectiveness of police investigations and prevent the national security law from fulfilling its legislative purpose, which was to “effectively” prevent crimes that threaten national security and punish, so the judges wrote.

Photo: GovHK.

The National Security Law, enacted in June 2020, criminalized subversion, secession, collusion with foreign forces and acts of terrorism, broadly defined to include disrupting transportation and other infrastructure.

The judges also said that including journalistic material as specified evidence “would not impinge on the protection of press freedom under local laws or violate the principle of legality.” The judge would still have to play the same gatekeeper role to ensure that searches and seizures of journalistic material are “justified in the public interest”.

Wednesday’s ruling meant police could use journalistic material found in Lai’s phone in the high-profile trial in December. The High Court said last month it would not seek an adjournment of the trial.

The 74-year-old has been in custody since December two years ago. He has since been sentenced to prison for other protest-related offenses.

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