Hong Kong activist Benny Tai 'neutral' on sentencing timeline in subversion case as 16 co-defendants sit in on hearing

Former law professor Benny Tai, one of 29 Hong Kong pro-democracy figures who have pleaded guilty to a subversion charge, has indicated that he is “neutral” on the sentencing timeline in the city’s largest national security case.

Tai appeared before designated national security judges Andrew Chan, Wilson Chan and Johnny Chan on Wednesday to discuss matters linked to his mitigation and sentencing. Sixteen of his co-defendants were also in attendance to observe the proceedings.

The 58-year-old has pleaded guilty to playing a role in an alleged conspiracy to commit subversion involving a total of 47 democrats.

Representing Tai, who used to teach law at the University of Hong Kong, Senior Counsel Stewart Wong told the court that some of the accused have indicated that they would rather be sentenced before the trial of their 18 co-defendants who have denied the charge.

Tai, however, was “neutral” on when the mitigation and sentencing should take place, Wong said, adding that Tai’s oral mitigation would be completed within two hours.

Tai could face up to life imprisonment over the subversion charge. The Beijing-imposed security law sets out three levels of penalty, subject to the nature of the offence and the suspect’s culpability. It remains unclear which level of punishment the High Court may impose on the democrats.

Tai’s co-defendants Au Nok-hin, 35, and Ben Chung, 33, were also brought before the three-judge panel around an hour after his appearance. Their lawyer, Valerie Chan, said the pair preferred to be sentenced after their co-defendants had stood trial and that mitigation would last between two to three hours in total for both.

The allegation revolves around unofficial primary polls held in July 2020 that aimed to help the opposition camp select candidates that would help them win a majority in an upcoming Legislative Council election. If elected, the democrats were said to have intended to abuse their powers as lawmakers to veto budget bills, paralyse government operations and eventually force the chief executive to resign.

Tai and Au were said to have organised the primaries along with former district councillor Andrew Chiu, who has also pleaded guilty to the charge. The prosecution has said the trio as having advocated for their agenda publicly and attempted to justify its legality.

More specifically, Tai coordinated the signing of an agreement by candidates of the primaries in which they agreed to “indiscriminately veto” the government budget and compel the chief executive to respond to protesters’ demands, prosecutors said during a hearing in June.

The democrats had also reached a consensus that only the top five candidates who secured the highest number of votes in the primaries could stand in the actual legislative election, and those who lost should rally their voters to back other opposition candidates in the official polls.

Au, on the other hand, helped liaise the holding of election forums, according to the prosecution’s case.

“They held the primaries which was a vital step in their course of achieving their common goal of ‘mutual destruction’,” lead prosecutor Andy Lo said in June.

Sixteen other defendants attended the hearing on Wednesday, including Joshua Wong, Eddie Chu, Roy Tam, Winnie Yu, Carol Ng, Claudia Mo, Tiffany Yuen, who were seated inside the dock. Other democrats including Gordon Ng, Ventus Lau, Wu Chi-wai, Frankie Fung, Fergus Leung, Owen Chow, Ng Kin-wai, Henry Wong and Gary Fan sat at what would normally be the jury’s bench.

Most of the defendants present in Wednesday’s hearing have been held in custody for 19 months since they were detained by police on February 28 last year. They were later denied bail on national security grounds following a four-day marathon bail hearing in early March. Only 13 of the 47 are currently on bail.

Prosecutors have told the High Court that it would be “proper” to adjourn the sentencing of the 29 democrats who have pleaded guilty until after the trial of the 18 others, in order to evaluate the scope of the alleged conspiracy and the defendants’ individual guilt.

But defendant Ventus Lau argued such a move may be unfair to the accused, as they may end up being detained for longer than the jail term they will ultimately be given. Other defendants also cited “anxiety” while in detention in asking the court to sentence them as soon as possible.

Wednesday’s hearing marked the end of the first round of case management hearings for the high-profile case. The High Court will meet the rest of the democrats in early November, according to the court diary.

The trial of the 18 democrats who have pleaded not guilty has yet to be scheduled, but Secretary for Justice Paul Lam has ordered that the group 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.