Forty-seven Hong Kong pro-democracy activists were charged with ‘conspiring to subvert state power’ on 28 February for organizing or participating in an unofficial primary election for the Legislative Council (LegCo) last year. The Department of Justice (DoJ) accused them for planning to paralyze the government and force the Chief Executive to resign through rejecting the government budget or public spending after gaining majority control of the LegCo.
This political trial, the most stirring one since the handover, started with the hearing of bail applications at the Magistrates' Court last week. However, it is still way away from substantive hearing and verdict.
After the unprecedented four-day bail application hearing, national security law designated Judge So Wai-tak Victor approved bail applications of 15 and rejected those of the remaining 32 on 4 March. However, the DoJ appealed against the bail decision on the spot, and the 15 needed to keep on remand until the end of appeal hearing. Next day, the DoJ changed its mind and withdrew appeal applications of four, namely Yeung Suet-ying Clarisse, Lau Wai-chung, Lui Chi-hang Hendrick and Lam King-lam, who regained freedom at the moment.
If the remaining 11 bail appeal cases are rejected by a higher court, a total of 43 democrats will lose months or even years of freedom before substantive hearing and conviction are made.
1. Who are the defendants?
On 6 January, national security police arrested 55 who organized or participated in an unofficial primary, and accused them of ‘subversion of state power’ under the national security law. On 28 February, the National Security Department of the Hong Kong Police Force officially charged 47 of them with conspiring to subvert state power, and they were brought before the court after being detained overnight. The remaining eight were given police bail and it is not sure whether they will be charged.
The 47 accused, 39 male and 8 female, aged from 23 to 64, include organizers of the primary and candidates who won or lost in it. Among them, 23 are serving district councilors, and 10 were members of LegCo from 2016 to 2020.
The 47 accused are all well-known pro-democracy activists from across the political spectrum, from veteran moderates to new generation ‘resistant’ and ‘localist’ leaders. They include retired professors, barristers, medical practitioners, social workers and district councilors.
The LegCo currently has 70 seats, with legislators from political parties that may largely considered as two camps, namely pro-establishment and anti-establishment democrats. They were returned by direct election and functional constituencies, the latter in which the pro-establishment has had an advantage for years, hence their overall majority in the LegCo.
Hong Kong’s laws do not stipulate any mechanism of primaries. Subsequent to the Anti-Extradition Law Amendment Bill Movement in 2019, the democrats initiated the unofficial primary ‘35+’ (35 seats or over) in July 2020, to coordinate for the LegCo election originally scheduled in September that year with an aim to win a majority of seats. The primary, which lasted for two days with 251 polling stations, elected candidates who would represent the democrat camp to run for election. 610 thousand Hongkongers cast their votes.
However, when formally nominated for the LegCo election, some of them were disqualified by the government from running on the ground of ‘not sincerely upholding the Basic Law’, and they could not take part in the election as candidates. Later on, the government postponed the election for not less than one year on the ground of COVID-19 epidemic.
2. On what ground were the 47 charged?
According to the charge sheet, they were charged with ‘conspiring to subvert state power’, violating the national security law and crimes ordinance.
It was said that, from 1 July 2020 to 7 January 2021, they conspired among themselves or with others to subvert the state power by organizing, planning, committing or participating [in a plot], threatening the use of force or other unlawful means, to promote, proceed or participate in a plot that aimed to abuse the power granted by the Basic Law after elected, reject government budget or public spending without considering their merits and demerits, and force the chief executive to dissolve the LegCo, so to paralyze the government and lead to the resignation of the chief executive.
However, critics have long pointed out that lawmaker rejecting government budget is a power provided for and allowed by the Basic Law, Hong Kong’s constitution. It is doubtful how unlawful the claims of the primary’s participants could be.
3. Why is it a political trial? Why does the hearing of a national security case cause concern for justice?
The national security law, based on which to charge the 47, was passed by the National People’s Congress at Beijing in June 2020 without the deliberations of Hong Kong’s LegCo. After the 47 were charged, the European Union expressed grave concern and regarded it as a sign of no more toleration of political pluralism by the Hong Kong government; Dominic Raab, British Foreign Secretary, described the national security law being used to purge against dissidents as “deeply disturbing”.
Antony Blinken, US Secretary of State, emphasized on Twitter that political participation and freedom of speech should not constitute any crime, and urged for the immediate release of all the arrested.
The four offences stipulated in the national security law come with minimum imprisonment terms, sharply contrasting the mere stipulation of maximum term and sentencing by judges as in other laws in Hong Kong. For example, for ‘subverting the state power’ as in this case, Article 22 of the national security law stipulates that ‘a person who is a principal offender or 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; ‘a person who actively participated in the offence’ shall be given an imprisonment of not less than three years but not more than ten years; other participants will be given imprisonment of three years or less, ‘detention or restriction.’
The national security law also stipulates that national security judges shall be designated by the chief executive from the list of magistrates and judges. This arrangement was criticized by Li Kwok-nang Andrew, ex-Chief Justice of the Court of Final Appeal, as ‘detrimental to the independence of the judiciary.’
There are wide concerns over the fairness of trial in national security cases. In another national security case in which Tong Ying-kit, 23, was charged with ‘secession’ and ‘terrorist activities’, there have been reports that there would be no jury, as instructed by the DoJ. The two charges could bring him a maximum of life imprisonment.
The jury system is historical and well established in Hong Kong. The Basic Law stipulates for its continuation after the handover.
Article 55 of the national security law also stipulates that the central government’s national security office in Hong Kong may, upon approval by the central government, exercise direct jurisdiction over cases that are complex due to the involvement of ‘external elements’ or involve major and imminent threat to national security.
Moreover, it is also a concern whether those accused under the national security law can be given bail before convicted, as Article 42 of the national security law stipulates that ‘no bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.’ Earlier on, another accused Lai Chee-ying Jimmy, founder of Next Media, appealed to the Court of Final Appeal against the rejection of bail to him, and the Court sentenced last month that the general common law principle of ‘presumption of bail’ is not applicable to the national security law.
4. Why did the bail hearing last for four days? What is the procedure to come?
On 28 February, the national security police officially charged the 47, who were brought before the West Kowloon Magistrates’ Court next day (1 March). The bail applications were heard by national law designated Judge Victor So.
The hearing was originally scheduled that day at 11am. However, it took time for the numerous defendants to meet their lawyers, and the hearing did not start until 3:30pm.
Then, defence lawyers made bail submissions for the accused one by one. The court room was full of the accused and their lawyers; family members, reporters and the public could only watch video live in other court rooms or the press room. The hearing lasted through 4 March that all submissions were heard, making it the longest ever bail application hearing in Hong Kong’s judicial history.
On the first day of hearing on 1 March, several accused became sick or fainted at the midnight due to lack of rest and food for long, and were hospitalized. Some defence lawyers pointed out that the accused had not showered and changed for three whole days since arrested, and were all worn out.
The DoJ requested for adjournment of case for three months for the police to conduct further investigation. This was rejected by some defence lawyers, who deemed it an abuse of power causing unfairness to the accused, who were put on remand before the prosecutor had enough evidence.
Finally, Judge Victor So approved the adjournment, and the case will be heard again on 31 May. If the accused were to plead not guilty, the court will have to schedule dates for trial, and now is still way away from substantive hearing and verdict. This implies months or even years of remand before the accused are finally convicted.
List of the 47 defendants
D1: TAI Yiu Ting (Age: 56) Retired Person
D2: *AU Nok Hin (Age: 33) University Guest Lecturer
D3: CHIU Ka Yin Andrew (Age: 35) District Councilor (Eastern District Council)
D4: CHUNG Kam Lun (Age: 32) District Councilor (Sai Kung District Council)
D5: NG Gordon Ching Hang (Age: 42) Unemployed
D6: YUEN Ka Wai Tiffany (Age: 27) District Councilor (Southern District Council)
D7: LEUNG Fong Wai Fergus (Age: 23) District Councilor (Central and Western District Council)
D8: CHENG Tat Hung (Age: 32) District Councilor (Eastern District Council)
D9: CHUI Chi Kin (Age: 53) District Councilor (Eastern District Council)
D10: YEUNG Suet Ying Clarisse (Age: 34) District Councilor (Wan Chai District Council)
D11: PANG Cheuk Kei (Age: 26) District Councilor (Southern District Council)
D12: SHAM Tsz Kit (Age: 33) District Councilor Sha Tin District Council)
D13: *MO Man Ching Claudia (Age: 64) Unemployed
D14: HO Kai Ming Kalvin (Age: 32) District Councilor (Sham Shui Po District Council)
D15: FUNG Tat Chun Frankie (Age: 25) Digital Marketing
D16: LAU Wai Chung (Age: 53) Barrister
D17: *WONG Pik Wan (Age: 61) Unemployed
D18: LAU Chak Fung (Age: 24) Assistant to District CouncilorD19: WONG Chi Fung (Age: 24) Unemployed
D20: *TAM Man Ho Jeremy Jansen (Age: 45) Businessman
D21: LI Ka Tat (Age: 29) District Councilor (Kwun Tong District Council)
D22: TAM Tak Chi (Age: 49) Umemployed
D23: *WU Chi Wai (Age: 58) Unemployed
D24: SZE Tak Loy (Age: 38) District Councilor (Wong Tai Sin District Council)
D25: *CHU Hoi Dick Eddie (Age: 43) Unemployed
D26: CHEUNG Ho Sum (Age: 27) District Councilor (Tuen Mun District Council)
D27: WONG Ji Yuet (Age: 23) Student
D28: NG Kin Wai (Age: 25) District Councilor (Yuen Long District Council)
D29: *WAN Siu Kin Andrew (Age: 51) District Councilor (Kwai Tsing District Council)
D30: *KWOK Ka Ki (Age: 59) Doctor
D31: NG Man Yee Carol (Age: 50) Teacher
D32: TAM Hoi Pong (Age: 40) District Councilor (Tsuen Wan District Council)
D33: HO Kwai Lam (Age: 30) Unemployed
D34: LAU Wing Hong (Age: 27) Office Assistant
D35: *YEUNG Alvin Ngok Kiu (Age: 39) Barrister
D36: *CHAN Chi Chuen Raymond (Age: 48) Unemployed
D37: CHOW Ka Shing (Age: 24) Student
D38: *LAM Cheuk Ting (Age: 43) District Councilor (Northern District Council)
D39: FAN Gary Kwok Wai (Age: 54) District Councilor (Sai Kung District Council)
D40: LUI Chi Hang Hendrick (Age: 38) Social Worker
D41: LEUNG Kwok Hung (Age: 64) Unemployed
D42: LAM King Lam (Age: 32) Businessman
D43: OR Yiu Lam Ricky (Age: 49) District Councilor (Sai Kung District Council)
D44: SHUM Lester (Age: 27) District Councilor (Tsuen Wan District Council)
D45: WONG Pak Yu (Age: 30) District Councilor (Yuen Long District Council)
D46: LEE Yue Shun (Age: 27) District Councilor (Eastern District Council)
D47: YU Wai Ming Winnie (Age: 33) Hospital Authority Clerk
* Members of Legislative Council before the Pan-democrats resignation in November