The high-profile national security trial of 18 Hong Kong pro-democracy figures who have pleaded not guilty to alleged conspiracy to commit subversion is expected to begin after Lunar New Year, almost two years after they were charged, a court has said.

High Court
High Court. Photo: Kelly Ho/HKFP.

The tentative trial date was unveiled in the High Court on Tuesday, when defendants Andrew Chiu, Tiffany Yuen and Chui Chi-kin appeared before a three-judge panel to discuss matters linked to their mitigation and sentencing in the case against 47 well-known politicians and activists.

The three former district councillors are among 29 defendants who pleaded guilty in June to their involvement in unofficial legislative primary polls held in July 2020. The primaries aimed to help the pro-democracy camp select candidates for an upcoming Legislative Council election and secure a majority in the legislature.

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 if they were successful.

Chiu, Yuen and Chui on Tuesday indicated their preferred sentencing timeline before designated national security judges Andrew Chan, Wilson Chan and Johnny Chan.

Prosecutor Betty Fu, who appeared for the Department of Justice for the first time in the case against the 47 democrats, said an agreement had been reached with Chiu’s lawyer that his client – said to be one of the organisers of the primaries – would face penalty after the trial of the 18 defendants who have denied the charge.

Andrew Chiu
Andrew Chiu. File photo: Andrew Chiu, via Facebook.

Yuen and Chui, on the other hand, told the court that they wanted to be sentenced “as soon as possible” before the trial. Representing Yuen, Senior Counsel Nigel Kat said “nobody” knew when the trial would take place and there was a “risk of serious injustice” if his client was kept in prison “indefinitely.”

Judge Andrew Chan responded by saying the trial could commence next year after the Lunar New Year, which falls from January 22 to 25, if all parties were ready, with prosecutors estimating that it would last for 55 days. The case, the city’s largest national security one to date which has been widely reported by local and international media, would hopefully conclude before next summer, the judge added.

A February trial would mark almost two years after the authorities officially pressed charges against the 47 democrats. Most of them have been detained for more than 20 months after being denied bail on national security grounds following a four-day marathon bail hearing in March last year.

Bail applications in national security cases have to go through a stricter assessment. Judges consider not only the defendant’s risk of absconding or obstructing justice, but also whether there are sufficient grounds for believing they “will not continue to commit acts endangering national security.”

At present, 13 defendants have managed to receive bail pending trial.

  • 47 arrested democrats
  • 47 arrested democrats
  • 47 democrats (divided3)'
  • 47 arrested democrats

In April, High Court judge Esther Toh expressed concerns over “the long delay in the proceeding being brought to trial.” The Law Society of Hong Kong also raised concerns over the delay in bringing detained defendants to trial in cases relating to national security and public order.

Senior Counsel Kat on Tuesday requested a separate hearing to argue whether the three-judge panel before him had jurisdiction in meting out punishment for the democrats who have pleaded guilty.

The lawyer pointed to Section 32 of the High Court Ordinance, which stated that every proceeding in the Court of First Instance shall be heard and determined by a single judge. The provision also stipulates that the Chief Justice may issue a direction to allow two or more judges to preside over a proceeding in the Court of First Instance.

Yuen also wanted to dispute the legal scope of the conspiracy charge as she did not agree with some accusations stated by the prosecution, Kat said. But the judges said the issue was related to the relevance of certain facts in sentencing Yuen, which could be dealt with during the mitigation stage and did not warrant a separate hearing.

Tiffany Yuen
Tiffany Yuen. Photo: Tiffany Yuen, via Facebook.

“The one-third discount is only given to [defendants] who show remorse and save the court’s time and resources,” said Andrew Chan, adding Kat may consider preparing a different set of summary of facts for the prosecutors to consider in order to come up with a version that could be agreed by both sides.

The court will hear Kat’s arguments on the jurisdiction of the three-judge bench on November 28.

Unlike most trials in the common law system, the 47 democrats case will not be tried by a jury but by three judges after Secretary for Justice Paul Lam cited “involvement of foreign elements” in the case in August as a reason of departing from a jury trial. He also cited concerns over the “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.