Dozens of Hong Kong pro-democracy figures who have pleaded guilty to a subversion charge should be sentenced after the trial of their 18 co-defendants, prosecutors in the city’s largest national security case have said.
Former district councillor Fergus Leung, ex-convenor of the defunct Civil Human Rights Front Jimmy Sham and former president of the Hong Kong Shue Yan University students’ union Lau Chak-fung appeared before three judges in the High Court on Friday to discuss matters linked to their sentencing.
The trio was among 29 well-known politicians and activists to have pleaded guilty to conspiracy to commit subversion in June. The allegation centres on unofficial primary polls held in July 2020 to select opposition candidates for an upcoming Legislative Council (LegCo) election involving 47 Hong Kong pro-democracy figures.
The primaries, which aimed to help the pro-democracy camp secure a majority in the legislature, were said to be part of a conspiracy to allow the democrats to abuse their powers as lawmakers – if elected – to veto budget bills, paralyse government operations and ultimately force the chief executive to resign.
On Friday, lead prosecutor Andy Lo told designated national security judges Andrew Chan, Wilson Chan and Johnny Chan that Leung, Sham and Lau – as well as other democrats who have pleaded guilty, should face sentencing after their 18 co-defendants have stood trial at the High Court.
Citing a Court of Appeal decision, Lo said in a case with more than one defendant, it would be “proper” to sentence those who admitted the charge after their co-defendants were tried. Such an arrangement would be beneficial to the court in considering the criminality of all defendants in the same case, he said.
A trial date for the high-profile case has not been fixed yet, but Secretary for Justice Paul Lam has ordered the 18 democrats to be tried by a three-judge panel, instead of a jury. He cited the alleged “involvement of foreign elements” as a reason to depart from the common law tradition, as well as concerns over “personal safety of jurors and their family members” and a “risk of perverting the course of justice” if the trial is conducted with a jury.
Justice Andrew Chan asked the defence lawyers to indicate whether their clients wanted to be sentenced before or after the trial. Representing Sham, barrister Bruce Tse said the ex-protest coalition leader would not object to being sentenced after the trial, while the representatives of Leung and Lau said they were “neutral.”
The 47 democrats’ case was first brought to court in March last year. Most defendants have been detained since then after being denied bail on national security grounds. Only 13 of them are currently on bail.
The sentencing would affect the welfare arrangement for those in detention. Once they are sentenced, their status would change from “remand persons in custody” to “convicted persons.” The latter may only see their family and friends twice a month, while individuals on remand get daily visits.
Convicted persons also see more restrictions on the daily supplies they receive from their family and friends. For instance, no snacks are allowed for convicts, whereas individuals on remand pending trial or sentencing may still receive specific brands of chocolate, crackers, packets of cuttlefish, beef or pork jerky and peanuts, in limited quantities.
Justice Chan on Wednesday instructed lawyers representing Leung, Sham and Lau to keep their written submissions or mitigation pleas within 20 pages long and to follow specific formatting. The documents should be sent to the court 14 days before the sentencing hearing, which will be scheduled after the judges handle case management matters for all 29 defendants who have pleaded guilty.
The defence should provide a summary of the mitigation letters they submit to the court, Chan said, while letters written in Chinese should be translated. The prosecution, on the other hand, was told to give the court a summary of the case authorities they intend to file as references for sentencing principles.
Representing Leung, who served in the Central & Western District Council before he resigned while in custody, barrister Winnie Li said her mitigation submission should not last longer than three hours. But she may require more time to refer to the legal arguments made in other national security cases, including the sentencing of six minors in the Returning Valiant case next Friday, as well as a university student’s bid to appeal against his five-year sentence for inciting secession after a judge walked back his sentencing discount.
Under the national security law, a “principal offender” in a subversion offence of a “grave nature” could be sentenced to life behind bars, or a fixed-term imprisonment of not less than 10 years. Those who “actively participate” in the offence would be jailed for between three and 10 years, while other participants shall face a fixed-term imprisonment of not more than three years, short-term detention or restriction.
It remains unclear what level of penalty the High Court may impose.
Former district councillor Leung was one of the candidates who stood in the unofficial polls. The prosecution said in June that the activist attended an election forum in late June 2020, when he demonstrated “staunch support” for the scheme. He was said to have pledged to use all possible means, including physical confrontation, to stall the passing of what he saw as draconian legislation in the legislature.
“I know what I have done,” Leung told Principal Magistrate Peter Law when he pleaded guilty in June, which was previously unreportable owing to reporting restrictions.
Sham, on the other hand, was said to have lobbied opposition against the central authorities and the Hong Kong government between April and June in 2020, as well as promoted defiance against the national security law, which was enacted on June 30 that year.
Prosecutors also pointed to an election campaign pamphlet Sham filed along with a nomination form for the primaries, which they said clearly showed the former vice-chief of the League of Social Democrats had a “firm belief in maintaining unwavering insurgence within the LegCo and against the government.”
Ex-student leader Lau, who also ran in the primaries, was said to have advocated for resistance against the administration in a media interview, in which he said people were free “not to be patriotic.” The activist and his campaign team also published at least seven articles advocating “localist resistance,” the prosecution said.
Friday marked the second day of case management hearings in the High Court for the 29 democrats who have pleaded guilty. They could be asked to confirm the guilty pleas before the three-judge panel, but so far the hearings have focused on discussing arrangements for sentencing.
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