The Hong Kong judiciary on Thursday released a judge’s written reasons for granting bail to two of the 47 democrats facing national security charges but refusing another applicant.

Activists Owen Chow (second from left) and Ventus Lau (fourth from left) hold up hand gestures as they get on a Correctional Services vehicle with other charged democrats on March 3, 2021. File Photo: Studio Incendo.

Former lawmaker Helena Wong and District Councillor Tat Cheng were released three weeks ago, after High Court Judge Esther Toh rejected the prosecution’s challenge against a lower court’s decision to grant them bail.

But Toh upheld the prosecution’s appeal against the granting of bail to District Councillor Ng Kin-wai.

‘Risk to re-offend’

The 47 democrats are accused of conspiracy to commit subversion under the national security law, an offence punishable by life imprisonment, over their involvement with a primary organised by the opposition last July to select candidates for an upcoming Legislative Council election. The election was later postponed on the grounds of coronavirus.

Prosecutors say plans by some of the democrats to secure a majority in LegCo, and then vote down the budget to try to force the chief executive to accept their demands, amounted to subversion.

Only 11 of the 47 have so far been granted bail, which is far more difficult to secure under the Beijing-imposed security law. A judge must be satisfied there are sufficient grounds to believe that the defendant will not continue to commit acts endangering national security.

The law has created a “specific exception” to the general rule in favour of granting bail, Hong Kong’s Court of Final Appeal ruled in January.

Helena Wong Pik-wan. File Photo: HKFP/Catherine Lai.

In her reasoning, Judge Toh wrote that she decided against the prosecution’s challenge in Wong’s case after considering the arguments of defence counsel Paul Harris.

Wong “was being harassed for not supporting the principle of ‘laam chau’,” Toh cited Harris as saying, referring to the idea of mutual destruction promoted by more aggressive democrats.

“Mr Harris SC also pointed out that the respondent had a long voting record in LegCo, which included voting for the Government in many of the motions,” she wrote.

Wong was among those asked to join the interim legislature in August 2020 after the government announced that elections had been postponed, indicating “a further proof of the trust the Hong Kong Government had in her.”

Democrats running in the 2020 primaries election. Photo: Rachel Wong/HKFP.

Harris “also pointed out that she did not sign the online declaration as other candidates had done,” the judge said in her ruling. The declaration stated that once elected, the primary candidates would swear to use all their powers — including vetoing the city’s budget — to force the chief executive to concede to 2019 protest demands.

‘Had no influence whatsoever’

Regarding the decision to grant Tat Cheng bail, Toh said defence counsel Hectar Pun had argued that his risk of re-offending was low “as he had quit the party and politics altogether.”

Cheng “had a short political career and he was a loner, and therefore had no influence whatsoever,” Toh wrote, citing the defence. “He is more like someone who is described as ‘merely drifting along and lacks such enthusiasm’.”

Being a loner, he may not “be as efficient and effective in carrying out the prohibited acts when compared with one having connections and means,” the decision read.

(From left to right) Ng Kin-wai, Jimmy Sham, Lawrence Lau, Henry Wong, Kwok Ka-ki, Lee Yue-shun, Lam Cheuk-ting, Sam Cheung and Ray Chan getting on a Correctional Services Department vehicle on March 3, 2021. File Photo: Studio Incendo.

Ng’s bail, however, was revoked after Judge Toh ruled in favour of the prosecution.

Ng had “strong political connection and [a] long social activist history. The Court should consider, therefore, that there are sufficient grounds to believe that [he] will continue to commit acts or offences against national security if granted bail,” the decision quoted prosecutor Maggie Yang as saying. Ng remains in custody.

Bail denied again

Separately, an application by District Councillor Ben Chung for bail was once again denied on Wednesday.

The 36 who were refused bail have been in custody since being charged on February 28. The next hearing in the case is not till May 31.

Among those in custody, District Councillors Lam Cheuk-ting and Gary Fan both announced last week that they had resigned from office as they were unable to fulfil their duties.

In two open letters posted by staffers to Facebook, Lam, who was also a former lawmaker, wrote: “I have decided to resign from the job as a Northern District councillor, formally ending my career as a lawmaker. I thank citizens for their trust and support all these years and I thank all my colleagues and volunteers for their unwavering support.”

“Whether I was a dual-councillor or a prisoner who’s lost both [jobs], I remain proud. Lam Cheuk-ting is still Lam Cheuk-ting,” he wrote.

Fan announced his resignation also on Facebook: “I’m writing next to a metal window from a small cell in the Lai Chi Kok Detention Centre, to tell you of my hard and painful decision. Because I have been charged with conspiracy to commit subversion, I estimate that I will remain in jail for a long time and will be unable to fulfil my duties as a district councillor.”

“I have fought the good fight, I have finished the race, I have kept the faith,” Fan concluded, quoting a biblical verse.

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Selina Cheng

Selina Cheng is a Hong Kong journalist who previously worked with HK01, Quartz and AFP Beijing. She also covered the Umbrella Movement for AP and reported for a newspaper in France. Selina has studied investigative reporting at the Columbia Journalism School.