A high-profile group of Hong Kong pro-democracy activists could face life in prison if found guilty of breaching a Beijing-imposed national security law after prosecutors sought to have their trial transferred to the city’s High Court.

protesters supporters at west kow
Photo: Candice Chau/HKFP.

On Monday, the 47 democrats reappeared before a magistrate’s court in the city after more than three months in custody since they were charged in late February. Chief Magistrate, Victor So, ordered that the case be adjourned and the defendants return to court on July 8 when he will formally deal with a prosecution application to have the case transferred to the High Court for trial or for sentencing, depending on the plea they make on that day.

The defendants will also have to decide at the July 8 appearance if they require a preliminary inquiry, So said. Such an inquiry is to decide whether there is a prima facie case to put them before a jury trial.

Defendants tried before the High Court can face a maximum penalty of life imprisonment upon conviction.

Some of Hong Kong’s most prominent democrats including Joshua Wong, Benny Tai, and media mogul Jimmy Lai are facing allegations of conspiracy to commit subversion under the national security law over their involvement with a primary poll organised by democrats to select candidates for an upcoming Legislative Council election. The election was later postponed on the grounds of restrictions imposed due to the coronavirus pandemic.

Emily Lau
Emily Lau queuing up to attending the hearing of 47 democrats charged under the national security law at West Kowloon Law Courts Building on May 31, 2021. Photo: Candice Chau/HKFP.

The defence counsels for several defendants expressed concern that they may not have sufficient time to advise their clients if they could not receive documents and evidences from the prosecution earlier than the minimum seven days before the next hearing, as the law allows for.

Defence counsel for Tiffany Yuen, Nigel Kat, submitted to the magistrate that they should also be informed about all the elements of the offences by prosecutors.

“There is very little guidance on the offence,” Kat said. “You can’t plead to something unless you know what the elements are that they have to prove against you, or turning on its head, what you’d have to admit by plea,” he said.

A complex case

Anson Wong, who represents activist Jimmy Sham and Lester Shum and former lawmaker “Long Hair” Leung kwok-hung, said that the defendants needed to be told if the Secretary for Justice would direct the case be heard without a jury, as well as the category of severity of the offence they are facing.

The defendants need to know the maximum sentences they may face before making a plea, Wong said, as the national security law stipulates three levels of severity for offences with varying degrees of penalty.

Magistrate So ordered that the defence counsels may apply for an adjournment if more time is required. “I understand the case is complex,” he said.

While High Court cases are traditionally heard before a jury, a failed bid to challenge the national security law in May has affirmed that the Secretary for Justice may direct a national security case to be tried without jurors, but by a panel of three judges.

Decisions handed down by High Court judges will also set a binding precedent for the city’s lower courts.

West Kowloon Law Courts Building
West Kowloon Law Courts Building. Photo: Candice Chau/HKFP.

Former district councillor Tiffany Yuen’s renewed bail application on Monday was rejected by So.

Since being charged only 11 of the 47 defendants have been granted bail, which is far more difficult to secure under the Beijing-imposed security law. 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.

The judge must be satisfied there are sufficient grounds to believe that the defendant will not continue to commit acts endangering national security, meaning that the burden of proof shifted from the prosecution — as in common law systems — to the defence.

police at west kowloon magistrate court on may 31
Photo: Candice Chau/HKFP.

The remaining 36 defendants who were not granted bail have been in custody since they were charged in February. Of them, 10 will reapply for bail this week.

The main courtroom was packed with the defendants and their lawyers, families and friends during Monday’s hearing. The democrats waved at the public gallery as they squeezed into the dock, and shouted at their loved ones as they left.

“You lost weight,” one person was heard saying. “Did you receive the letters?” another said.

Michael Pang
Michael Pang, one of the defendants who received bail was seen leaving the West Kowloon Law Courts Building on May 31, 2021. Photo: Candice Chau/HKFP.

Former Democratic Party chair Emily Lau told reporters before the hearing that it was “unfair” for 36 of the 47 activists to be held in custody, after the prosecution said in March that they needed time to conduct further investigations.

The 11 defendants out on bail, including former lawmaker Helena Wong and district councillor Michael Pang were seen arriving at the West Kowloon courthouse ahead of the proceedings but did not comment to the press. Dozens of police were on standby near the courthouse as hundreds queued up to attend the hearing as members of the public.

Additional reporting: Candice Chau.

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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.