Any move to sentence 29 democrats after their 18 co-defendants stand trial in Hong Kong’s largest national security case may cause “unfairness” to the group, a court was told.
Activist Ventus Lau, who like many others has been held in custody for more than 18 months while waiting for the high-profile case to move to trial, said some defendants may end up being detained longer than the jail term they will ultimately be given.
Prosecutors have told the High Court that it would be “proper” not to sentence the 29 democrats who have admitted the charge until after the trial of the 18 others, in order to gauge the scope of the alleged conspiracy and the defendants’ individual guilt.
Some democrats have asked the court to sentence them as soon as possible, citing “anxiety” while in detention since their bail was denied in March last year. Others said they wanted to wait until the trial concludes, or had no preference.
Designated national security judges Andrew Chan, Wilson Chan and Johnny Chan held a case management hearing in the High Court on Thursday with former district councillor Henry Wong and Lau, who helped organise rallies during the 2019 extradition bill protests, to discuss matters linked to their sentencing.
The pair are among the defendants who pleaded guilty in June to conspiracy to commit subversion in a case that involves 47 well-known politicians and activists. The allegation revolves around unofficial primary polls held in July 2020 to help the pro-democracy camp select candidates for an upcoming Legislative Council election and secure a majority in the legislature. The election was eventually postponed for over a year, citing Covid-19 fears.
The democrats were said to have intended to abuse their powers as lawmakers – if elected – to veto budget bills, paralyse government operations and eventually force the chief executive to resign.
‘Fair and timely manner’
On Thursday, Lau urged the three-judge panel to hear mitigation pleas and mete out penalties “as soon as possible,” before the 18 defendants who have denied the charge are tried. Citing Article 42 of the Beijing-enacted national security law, the activist said cases, including the detention and time limit for trial, should be handled in a “timely manner.”
The localist activist, who has had no lawyer since his legal aid was revoked last year, argued the provision showed that the punishment of national security offences should be conducted promptly as well, adding it was the basis for imposing a strict threshold for national security suspects to receive bail.
Asked by Justice Andrew Chan whether it was his preference to be sentenced before the trial, Lau said his preferences did not matter.
“It is the principle of the national security law that requires the court to punish criminals like us as soon as possible,” he said, adding he believed the court should comply with the provision to hold the sentencing hearings before the trial, for which a date has yet to be fixed.
Justice Wilson Chan said while the court had no intention to discuss legal principles during the Thursday hearing, the activist should note that the provision he read out in court also mentioned that national security matters, including sentencing, should be conducted in a “fair and timely manner.”
The judge said timeliness was “not the only consideration,” adding the judges must be fair to both the defence and the prosecution.
But holding the sentencing hearings after the trial could be unfair to the democrats who have pleaded guilty, Lau said. He pointed to the text in the national security law on the subversion offence, which stated that the court could impose three different levels of penalty depending on the culpability of the accused.
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.
Lau said if the court finds a defendant’s liability to warrant a prison term of under three years, taking into account the sentence reduction deriving from the guilty plea, the democrat may be jailed for two years at most. The detention period would likely exceed two years if sentencing takes places after the conclusion of the trial, he said.
“Even if the situation applies to just one defendant… the period he would be in detention would definitely exceed two years, so obviously it would cause unfairness to the defendant,” Lau said.
“Therefore, no matter whether you are considering fairness or the timely manner, I think the sentencing hearing for those who have pleaded guilty should be dealt with as soon as possible,” he added.
Lau was the spokesperson of Hong Kong Civil Assembly Team, with prosecutors saying he had lobbied for the localist resistance camp to become the “mainstream political force” in Hong Kong. The activist also faces a rioting charge in a separate case in connection with the storming of the legislature building on July 1, 2019.
He was said to have called on people to make “rebels” and “rioters” their lawmakers by voting for them in the primaries, which he said could send a message to the international community that Hongkongers were ready to “enhance their rebellion” against what the activist described as a totalitarian regime.
Lau estimated his mitigation plea would last for 39 minutes or less, while Wong’s lawyer, Kristine Chan, said the barrister representing the former Yuen Long district councillor would need around one hour. He also preferred being sentenced before his co-defendants’ trial.
Prosecutors have said that Wong was among the signatories of a declaration in July 2020 that called on the international community to support Hong Kong by imposing sanctions and using economic and commercial ties with China “as a leverage,” with an intention to achieve a “misguided political agenda.”
The activist was also said to have “fully demonstrated his firm determination to use physical confrontation” as a means to fight against the authorities, by dubbing himself “Super District Tank.” The nickname also reflected Wong’s “persistence and conviction in advocating localist ideologies,” the prosecution told a magistrate during a committal hearing in June.
No Chinese hearing
Thursday’s hearing also saw the three-judge panel rejecting Lau’s request to conduct the proceedings in Chinese. The activist said the English legal text of the security legislation was based on the Chinese version, while most of the statements made by the defendants were also in Chinese. It would be more “convenient” to use Chinese, Lau said, adding such an arrangement would better “manifest the spirit of safeguarding national security.”
But Justice Andrew Chan said previous case management hearings were conducted in English and turned down Lau’s request.
“May I ask why? All of us are Chinese, why can’t we speak Chinese?” Lau asked.
Justice Andrew Chan replied: “This is my decision.”
Currently, only 13 democrats are on bail. The next round of case management hearings for those who have pleaded guilty will take place later this month and in November.
The trial of 18 democrats who have pleaded not guilty has not been scheduled yet, but Secretary for Justice Paul Lam has ordered the group 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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