Subversion case of 47 HK pro-democracy advocates may be transferred to High Court after July hearing

Prosecutors have asked that the subversion case involving 47 Hong Kong pro-democracy advocates be transferred to the High Court, which could impose penalties of up to life imprisonment.

Chief Magistrate Victor So Wai-tak decided on Monday (May 31) the case will be heard again on July 8, when the defendants could choose to enter a plea or argue on whether the case should be transferred.

The 47 advocates were charged with conspiracy to commit subversion under the national security law, which carries a maximum sentence of life in prison. They were accused of plotting to subvert the government by organising or participating in primary polls last summer ahead of the planned Legislative Council election.

At the hearing, So – one of the designated judges to hear national security cases – denied the bail application of Tiffany Yuen Ka-wai, one of the accused. The court will hear the bail applications of 10 other defendants on the two days following.

Thirty-six of the 47 defendants have been detained for more than 90 days awaiting trial. The 11 defendants who were previously granted bail were allowed at the hearing to continue the arrangement.

Some of the defendants were being transferred from the reception centre to the court in the morning

Judge refused to direct prosecutors to provide information

Barrister Anson Wong asked the court to direct prosecutors to provide information on how the defendants are classified under the national security law. The law imposes a mandatory minimum sentence of 10 years in jail for “principal offenders”, while “active participants” and “other participants” face less severe penalties.

“The three categories are unique to the national security law, and this information should be made available to the defendants as a matter of fairness and legal certainty,” Wong said at the hearing. “Without information on the three categories, how can legal advisors properly advise their clients?”

The information might affect how the defendants choose to plead, so they should know about it before their next hearing, Wong said. For the same reason, he added, the court should also direct the prosecution to tell defendants whether the trial will be conducted in an open court, and whether they will be tried by a jury.

So rejected the requests saying that the prosecution is not required by law to offer “mode of trial” information at this stage. He also dismissed the request from barrister Nigel Kat for the prosecution to explain the elements of the offence.

“I don’t have the power to order the prosecution to provide that information,” So said.

The defence also asked the prosecution to submit their evidence earlier so that they may have sufficient time to go through the material and advise their clients, but So also refused to make the order. By law, the documents must be served to the defence by June 28.

Detainees and supporters in high spirits

Some of the detainees tried to take a lighter tone at the hearing, with “Fast Beat” Tam Tak-chi shouting “thanks, boss” to the magistrate on his way out. Others waved to their families and friends sitting in the public gallery.

“Stay strong everyone,” a defendant shouted as he was led away.

The afternoon hearing at the West Kowloon Magistrates’ Courts drew large crowds of supporters, who started queuing up early in the morning for a seat in the public gallery. Some of them chanted slogans of encouragement and flashed the “five demands, not one less” hand signal outside the court house. They were watched by dozens of police officers forming a tight cordon around the building.

The hearing drew large crowds of supporters

More bail applications to be heard

On Tuesday and Wednesday, the magistrate will hear the bail applications of Andrew Chiu Ka-yin, Nathan Lau Chak-fung, Ben Chung Kam-lun, Gordon Ng Ching-hang, Carol Ng Man-yee, Winnie Yu Wai-ming, Roy Tam Hoi-pong, Raymond Chan Chi-chuen, Gary Fan Kwok-wai and Henry Wong Pak-yu.

Contrary to Hong Kong’s common law tradition, the national security law does not follow the principle of presumption of bail. Article 42 of the law states that an accused “will not be granted bail unless the judge has sufficient grounds to believe that he will not continue to carry on acts that endanger national security.”

On July 8, the cases of the 47 will enter “committal proceedings”, meaning the magistrate will need to determine if there is strong enough evidence for the case to be transferred to the High Court for trial or sentencing.

There is no limit on the term of imprisonment that the High Court can impose, whereas the District Court can at most sentence defendants to seven years in jail.

Between their Monday hearing and their previous court appearance in March, many of the defendants – including key figures in the Civic Party, the Democratic Party and the Neo Democrats – had quit their roles. Others went even further and announced they would quit politics altogether.

In recent weeks, with the summer heat arriving early this year, some defendants have written from jail saying the conditions in prison have been “intolerable.” Many of the activists appeared to have lost weight when they showed up in court for the hearing.

In early March, the public was outraged by the four-day marathon bail hearings of the 47 charged with subversion, which ended up with one of the defendants, Clarisse Yeung Suet-ying, fainting in court and some of the others being transferred to the hospital.

By Holmes Chan