Members of the organisation behind Hong Kong’s annual Tiananmen Massacre vigil pleaded not guilty to refusing a police data request under the national security law on Friday, hours after several were denied bail over “incitement to subversion” charges.
Five leading members of the Hong Kong Alliance in Support of Democratic Movements of China, including barrister Chow Hang-tung, 36, Tang Ngok-kwan, Simon Leung, Chan To-wai, and Tsui Hon-kwong, appeared at West Kowloon Magistrates’ Courts in front of Acting Chief Magistrate Peter Law.
The group stood accused of “failing to comply with notice to provide information” under Article 43 of the national security law. Chow was representing herself, while barrister Cheung Yiu-leung represented the remaining defendants.
The police had requested information from the group in a letter in late August under provisions of the national security law, as they accused the group of working as an “agent” for foreign entities.
The Alliance has been a key player in Hong Kong civil society, organising annual candlelight vigils every June 4 to call for democracy and commemorate victims of the bloody crackdown in Beijing.
The Tiananmen massacre ended months of student-led demonstrations in China in 1989. It is estimated that hundreds, perhaps thousands, of people died when the People’s Liberation Army was deployed to crack down on protesters in Beijing.
When the court session began, the prosecution applied to adjourn the case for two weeks to allow for more time for the police to find other individuals who could provide the relevant information, but the request was denied by Law, after saying that the prosecution’s application was based on “too many assumptions.”
“You don’t know if there is anyone else, and – if there is – you have to decide on whether to give them a notice, and when there’s a notice, that person has to refuse to comply to constitute a crime,” said Law. “It seems too remote.”
The prosecution and the defendants also discussed whether an application for a judicial review would impact the case, as Tsui had filed an application – in his personal capacity – for leave to apply for judicial review against the police chief.
Tsui sought to ask the court through the review to declare that the Alliance was not a foreign agent, and restrain the police commissioner “from taking any further step to prosecute the Alliance or the recipients of the letter” until after there was a result on his application.
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Not guilty pleas
Acting Deputy Director of Public Prosecutions Anthony Chau asked whether it would be appropriate to wait for the result of the legal challenge, but Chow and the remaining defendants said they were ready to make a plea. All pleaded not guilty.
“I am not a foreign agent, I plead not guilty,” said Tang.
Following the defendants’ plea, the prosecutor said they would need a month to prepare for the case.
“It seemed that the prosecution brought the case to court before they were ready,” said Chow.
The prosecutor then said that they would need time to record testimonies for 10 to 15 witnesses, as well as prepare one to two box files.
Cheung said that he could see the prosecution’s pressure, “the speed by which they arrest people is quicker than the speed of investigation and preparing documents.”
After agreeing to set the pre-trial review for October 21, the court then dealt with the bail applications from the defendants, as Chau voiced objection.
The prosecution said that the court lacked sufficient evidence to believe that the defendants would not continue endangering national security, as all they had “blatantly” said that they would refuse data requests.
Chau also said that, as all defendants have important roles in the Alliance, and now that the Alliance was accused of endangering national security, they will continue harm national security if they were granted bail.
The prosecutor added that the prosecution also objected to the bail applications as one of the defendants, Chan, had a criminal record.
As Cheung made bail applications for four of the defendants, he said that the case was different from other national security cases as it involved a “passive action” of failing to submit information, and the prosecution’s arguments were cyclical.
He said that, in other cases, the allegations involved an “active act” of endangering national security, and to stop harming national security would be to halt such acts. In this case, Cheung said, it involved a “passive” act, and for the defendants to “stop endangering national security” would mean that they have to commit the action of handing in the information.
On the prosecution’s argument that the defendants’ “leading role” in the Alliance would enable them to continue endangering national security, Cheung said that if they did not hold “leading roles in the Alliance, they would not have received the notice [to hand in data].”
Cheung then said that, if the defendants were remanded in custody until the trial, it would be “obviously unfair,” as he estimated that it would take three to four months to process all 10 to 15 witnesses, and the highest jail sentence – if convicted – is six months.
“Even if they are convicted, the jail sentence will be shorter than the time they might spend in remand,” said Cheung.
The judge then asked whether the ongoing refusal to comply with the data request would be a continuation of endangerment of national security.
The barrister replied saying that the case included an important legal dispute because of the judicial review application, and that the prosecution had the burden of proof. He added that the police request was against the common law rule against self-incrimination.
Chow said she adopted Cheung’s submission, and that the data request was only applicable to agents of foreign entities, and the reason why she refused to comply was because the Alliance was not a foreign agent.
“Even in the case this morning, the prosecution did not say that the Hong Kong Alliance is an agent for foreign entities,” said Chow, referring to the other national security case the Alliance faced on Friday morning.
This is the second court case against members of the Alliance on the same day. On Friday morning, Chow and the Alliance’s Chair Lee Cheuk-yan and Vice-chair Albert Ho appeared in court for allegedly inciting subversion.
“Protecting my legal rights is not ‘blatantly violating the law’,” said Chow.
The judge then asked the prosecution how the omission of information would endanger national security – Chau replied that it would delay ongoing investigations.
Law then denied bail to all five defendants as he said he did not have sufficient reason to believe that they would not continue endangering national security.
He said that the data request was made under the national security law, and noncompliance is a violation of the law.
The five defendants have failed to hand in information up until that moment, affecting investigations, and Law said he considered delaying national security probes to be one of the situations affecting national security.
All defendants, apart from Leung, reserved their right to review their bail in eight days’ time.
Reporting restrictions lifted
Law also approved reporters’ application to lift bail reporting restrictions, and refused Cheung’s request to give exception to Chan’s criminal record, which the barrister said was “irrelevant” to the case.
“If you want transparency, it all has to be transparent,” said Law.
Unless specified, bail hearings are under court reporting restrictions, where written and broadcast reports are limited to only include the result of a bail proceedings, the name of the person applying for bail and their representation, and the offence concerned.
As the defendants left the dock, people in the public gallery shouted “hang in there,” “vindicate June 4th,” “release political prisoners” and waved to the defendants.
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