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Residents line up to vote in the primary election in Tai Po in July 2020. Prosecutors have argued the defendants conspired to win control of Legco and paralyse the government. Photo: Felix Wong

Explainer | Hong Kong 47: who are the key defendants in national security trial over Legco primary and what do they claim?

  • Sixteen defendants will receive verdict in March 2024 at the earliest to find out whether their involvement in primary constitutes ‘grand strategy of subversion’
  • Thirty-one others pleaded guilty to conspiracy to subvert state power in landmark national security trial
Brian Wong
After a 118-day trial spanning 10 months, 16 Hong Kong opposition figures will have to wait until at least March next year to find out whether their involvement in an unofficial legislative primary election constitutes a “grand strategy of subversion” in breach of the national security law.

Thirty-one others, including the primary’s four organisers, will also have to wait for the same duration before a verdict on their cases is delivered after they pleaded guilty to conspiracy to subvert state power, an offence punishable by up to life imprisonment.

The opposition-led primary was held in July 2020 to pick the strongest candidates to compete in the official Legislative Council election, due to take place two months later.

Hong Kong court must acquit opposition figures over legal loophole: lawyer

The government cited the coronavirus pandemic as the reason for postponing the race. During a year-long adjournment, the opposition camp faced an unprecedented crackdown, with Beijing introducing changes to the city’s electoral system to ensure “patriots” ruled Hong Kong.

Here is a closer look at the jury-free trial unfolding before three judges hand-picked by the city leader to oversee national security proceedings, and what to expect going forward.

The opposition camp held the primary in the aftermath of the 2019 anti-government protests to select its best candidates for the Legco election scheduled for September 2020. Photo: Dickson Lee

1. How did prosecutors establish their allegations?

Prosecutors have described the primary as a plot to turn the legislature into a “constitutional weapon of mass destruction” against the government, a term borrowed from legal scholar Benny Tai Yiu-ting, who floated the idea in an article published in March 2020.

They argued the 47 opposition figures had conspired to win control of Legco and paralyse the government by indiscriminately vetoing the fiscal budget.

The Basic Law, the city’s mini-constitution, provides that the chief executive must resign if the same financial blueprint is rejected twice by the legislature.

The prosecutors relied on Tai’s articles about “mutual destruction”, a plan they said was meant to eventually implicate Beijing. Speeches made at various press conferences and in election forums, as well as pledges signed by the primary’s participants, were also highlighted in court.

Former law professor Benny Tai wrote about the idea of turning the legislature into a “constitutional weapon of mass destruction” against the government. Photo: Nora Tam

Thirty-three defendants signed an online declaration titled “Resolute Resistance, Inked without Regret”, which the prosecution alleges committed them to blocking government budgets to force authorities to agree protesters’ demands during the 2019 social unrest, sparked by a now-withdrawn extradition bill.

Thirteen of the defendants signed a further joint statement, in which they allegedly made similar promises.

All primary candidates, including 42 of the defendants, submitted nomination forms for the unofficial poll, which confirmed they would act in line with a “consensus” to force the government to accede to protesters’ demands.

Three primary organisers, Au Nok-hin, Andrew Chiu Ka-yin and Ben Chung Kam-lun, testified for the prosecution in exchange for shorter sentences.

(From left) Former lawmaker Au Nok-hin, Benny Tai and Power for Democracy convenor Andrew Chiu hold a press conference on the primary on June 9, 2020. Photo: Nora Tam
Also helping the prosecution was Mike Lam King-nam, founder of Thai grocery chain AbouThai, who changed his plea before the start of the trial and cut ties with the “yellow economy” circle, a loose business coalition that supported the anti-government protests.
The prosecution also called a protected witness who worked for Tai during the initial planning stages of the primary, as well as police officers involved in the investigation.

Court told Hong Kong opposition primary became ‘insane’ bid to oust city leader

2. How did the 16 defendants present their cases?

Ten of the 16 defendants, all of whom were primary contestants, chose to give evidence in court. All of them denied reaching a prior agreement to block government budgets, but some displayed a firmer stance than the rest when asked about their public statements in the past.

Activists Owen Chow Ka-shing and Winnie Yu Wai-ming and former district councillor Sze Tak-loy said they would reject the budgets as long as the government refused to agree to protesters’ demands, which included introducing universal suffrage.

Unofficial primary organiser blamed for nurturing Hong Kong ‘radical’ activists

Journalist-turned activist Gwyneth Ho Kwai-lam insisted she had a “constitutional duty” to veto the budgets, not as an attempt to coerce the government, but because of concerns that authorities had ways to bypass legislative scrutiny while seeking funding approval, thereby creating what she called a “fiscal black hole”.

Former lawmaker Raymond Chan Chi-chuen, and ex-district councillors Kalvin Ho Kai-ming, Michael Pang Cheuk-kei, Tat Cheng Tat-hung and Lee Yue-shun said they opposed an indiscriminate vote against the budgets.

Lawrence Lau Wai-chung, a former district councillor and barrister by profession, said he was more concerned about a “political suicide” by not pledging to reject the financial proposals.

Cheng Tat-hung has said he was simply adopting the same stance on the primary as his fellow Civic Party members. Photo: Jonathan Wong

When asked about their support for resistance, some of the accused claimed they had merely hoped to increase their chances in the primary with the use of “election rhetoric”.

Sze, who was chairman of the Hong Kong Association for Democracy and People’s Livelihood, said he blurted out a promise to block all government bills during an election forum under pressure.

Tat Cheng Tat-hung, who was then affiliated with the Civic Party, said he was simply adopting the same stance as his fellow party members.

Hong Kong may have been ‘gravely affected’ by unofficial Legco primary, court told

Others appeared more resolute. Yu, for instance, said she had exaggerated in her speeches to show her determination in challenging authorities.

Gwyneth Ho described the Chinese Communist Party as a totalitarian regime, saying this was widely regarded as a consensus in academia.

Those who chose not to testify were former lawmakers Helena Wong Pik-wan, Lam Cheuk-ting and “Long Hair” Leung Kwok-hung, ex-district councillors Clarisse Yeung Suet-ying and Ricky Or Yiu-lam, and Gordon Ng Ching-hang, who allegedly coordinated the primary.

Former lawmaker Raymond Chan has said he opposed any strategy to indiscriminately vote against the government’s budgets. Photo: Edmond So

3. What can we expect after the trial is over?

High Court justices Andrew Chan Hing-wai, Alex Lee Wan-tang and Johnny Chan Jong-herng are expected to deliver their ruling in three to four months’ time after the defence makes its final submissions. But the panel added there was no guarantee the court could complete their work on time.

After the verdict, the court is expected to set dates for hearing pleas for mitigation from any convicted, including the 31 accused who have decided to admit liability.

The defence is also expected to make submissions on the level of culpability of their clients and the appropriate sentencing range to be applied.

Gwyneth Ho has described the Communist Party as a totalitarian regime, saying the label was widely regarded as a consensus in academia. Photo: May Tse

The national security law adopts a three-tier system in classifying offenders found guilty of subversion, with a “principal offender” liable to a minimum sentence of 10 years in jail.

A sentence of three to 10 years applies to an offender who “actively participates in the offence” and lesser penalties are for “other participants”.

Those pleading guilty are entitled to a one-third discount in sentencing, and those who assist the prosecution may be granted further remission.

Thirty-five of the 47 accused are currently remanded in custody, with some having been in prison since their prosecution in March 2021.

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