Hong Kong’s High Court can better determine the scope of an alleged conspiracy to commit subversion by 47 pro-democracy figures and their “individual guilt,” if it sentences 29 democrats who have pleaded guilty after the trial of their 18 co-defendants, prosecutors have said.

Wu Chi-wai
Wu Chi-wai. Photo: Kelly Ho/HKFP.

Former Democratic Party chairman Wu Chi-wai, ex-lawmaker Eddie Chu, and Sam Cheung, who served in the Tun Mun District Council, appeared before designated national security judges Andrew Chan, Wilson Chan and Johnny Chan on Tuesday to discuss issues concerning their sentencing in the city’s largest national security case.

The trio is among 29 prominent politicians and activists who have pleaded guilty to playing a part in an alleged conspiracy to commit subversion involving unofficial primary elections held in July 2020 to select opposition candidates for an upcoming Legislative Council election.

Through the primaries – which were designed to help pro-democracy camp win a majority in the legislature – the 47 defendants have been accused of conspiring to abuse their powers as lawmakers to veto budget bills, paralyse government operations and ultimately force the chief executive to resign if they were elected.

On Tuesday, barrister Queenie Ng said on behalf of Sam Cheung that he wanted to be sentenced before his co-defendants who have denied the charge stand trial. The ex-district councillor was said to have published a Facebook post in which he compared the relationship between mainland China and Hong Kong as that of a “kidnapper” and a “hostage,” as well as lobbied for international sanctions against China to help Hong Kong “regain freedom.”

sam cheung tuen mun district council
Sam Cheung. Photo: Sam Cheung, via Facebook.

Requesting foreign sanctions is a crime under the Beijing-imposed security law that came into force on June 30, 2020, which also outlaws secession, subversion and terrorist acts.

Former lawmaker Wu was “neutral” on the sentencing timing, his lawyer Breanne Kwok told the court. Prosecutors have said the ex-Democratic Party chair advocated for and promoted the scheme, as well as labelled the government an “authoritarian administration.”

The prosecution also alleged that Wu “concealed” his British National (Overseas) passport from authorities between December 17, 2020 and January 6, 2021, by making a false representation in court and a false statutory declaration at a time “when the impugned conspiracy was still extant and ongoing.”

Ex-legislator Chu also “had no preference” concerning the time of his sentencing. He was said to have described the primaries as a platform for challenging the “authoritarian and tyrannical” rule of the Chinese Communist Party in an election forum held in June 2020.

He also encouraged other activists – who labelled themselves as the “resistance camp” – to stage physical commotion in the legislature, prosecutors said in June during a committal hearing at the West Kowloon Magistrates’ Courts.

Eddie Chu
Eddie Chu. File photo: Legislative Council, via Flickr.

Both Ng and Kwok indicated on Tuesday that their mitigation pleas for their clients would be under two hours, while Chu, who had no legal representative, said he would complete his own mitigation within half an hour.

The question of when those who have pleaded guilty will be sentenced has been at the centre of a series of case management hearings that began last week in the High Court.

Some defendants who have admitted their involvement wanted to face punishment “as soon as possible,” saying they have experienced “anxiety” during their pre-trial custody, which began in March last year. Others have expressed a desire to wait until their co-defendants’ trial – for which a date is yet to be set – has concluded, while some have asserted their indifference over when they are sentenced.

The prosecution has told the court that in a case with more than one defendant, it would be “proper” to sentence all of the accused after the trial. Lead prosecutor Andy Lo repeated his stance on Tuesday and submitted nine cases handled by the Court of Appeal to back his argument.

Lo argued that under the circumstances shown in previous cases – including whether a defendant would be called upon as a witness for the prosecution – it would be desirable for the court to sentence all of the accused in one go.

“The court will have greater knowledge in determining the scope of the conspiracy and the individual guilt [of the defendants],” he said.

The prosecutor may elaborate on his argument after the court has handled case managenent matters for all defendants who have pleaded guilty, Justice Andrew Chan said. According to the court diary, seven democrats will appear before the three judges this month, while 11 will be brought to court in November.

Wu, Chu and Cheung have been detained for more than 18 months since they were first brought to court in March 2021 alongside dozens of well-known politicians and activists. Most of the defendants were denied bail on national security grounds, with only 13 of them on bail at present.

47 democrats
(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.

The democrats could face up to life imprisonment if convicted of the subversion charge by the High Court, but it remains unclear what level of penalty the three-judge panel may mete out.

The security legislation stipulates that 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.

Secretary for Justice Paul Lam has ordered the 18 pro-democracy figures who have pleaded guilty to be tried without 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.

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Ho Long Sze Kelly is a Hong Kong-based journalist covering politics, criminal justice, human rights, social welfare and education. As a Senior Reporter at Hong Kong Free Press, she has covered the aftermath of the 2019 extradition bill protests and the Covid-19 pandemic extensively, as well as documented the transformation of her home city under the Beijing-imposed national security law.

Kelly has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration. Prior to joining HKFP in 2020, she was on the frontlines covering the 2019 citywide unrest for South China Morning Post’s Young Post. She also covered sports and youth-related issues.