A group of Hong Kong democrats who have pleaded guilty to conspiring to commit subversion, must wait until the summer to be sentenced – after the high-profile national security trial involving their 17 co-defendants has ended.
By then, most will have spent well over two years in detention after being denied bail in March 2021 on national security grounds.
Joshua Wong, Claudia Mo, Lester Shum, Eddie Chu, Tiffany Yuen, Fergus Leung, Chui Chi-kin, Frankie Fung, Lau Chak-fung, Wong Ji-yuet, Carol Ng, Tam Hoi-pong, Law Wing-hong, Gary Fan, Hendrick Lui and Henry Wong Pak-yu appeared in front of a panel of three national security judges at West Kowloon Magistrates’ Courts on Wednesday.
The 16 defendants are among 47 prominent pro-democracy figures accused of taking part in a conspiracy to commit subversion under the Beijing-imposed national security law over unofficial legislative primary elections held in July 2020. Most of them have been detained for what is approaching two years following a four-day marathon bail hearing in March 2021.
Judges Andrew Chan, Alex Lee and Johnny Chan ruled on Wednesday that all those who pleaded guilty to the charge – including those present on Wednesday – would be sentenced after the trial of their 17 co-defendants who entered not guilty pleas.
Gwyneth Ho, who pleaded not guilty, also attended the hearing.
The trial, which is expected to last around 90 days, was supposed to start on January 30. However, the judges revealed at the beginning of Wednesday’s hearing that Justice Wilson Chan would retire from the case “due to health reasons.” He will henceforth be replaced by Alex Lee, and the beginning of the trial is expected to be delayed for up to two weeks.
Seven of those who entered a guilty plea earlier indicated that they wanted to be sentenced before the trial of their co-defendants.
Deputy Director of Public Prosecutions Jonathan Man Tak-ho objected to their application, saying that defendants in the same case were usually sentenced together, unless there was a “compelling reason.”
The defence argued, however, that there was a “serious risk” that the defendants could end up being detained for longer than their eventual sentence if they were handed their penalties after the trial, which was expected to end in June or July.
Citing the security law’s three-tier sentencing system, Man said that possibility would be “out of the question” if the court were to adopt the top-level sentencing option for principal offenders, which begins at a minimum term of 10 years.
Additionally, if the defendants were sentenced to six-and-a-half years – the middle point of the second tier, which targets “active participants” in an offence – their sentences would outweigh the time they have already spent in remand, Man said.
However, the defence said that if they were to receive sentences of five-and-a-half years or less there was the possibility that they would end up spending innocent time in detention, taking into account sentencing remission allowed for good conduct.
Man argued that the offence in this case was “extremely serious,” as the 47 democrats would have “destroyed” the Legislative Council (LegCo) and “beheaded” the Hong Kong government and caused it to shut down, had their plan to gain a controlling majority in the legislature succeeded.
He added that the scheme had mobilised “huge” numbers of people and stirred up “negative social sentiment.”
“It will be hard for anyone to doubt all defendants had actively participated in the scheme,” Man said, adding that the democrats had “played heroes as candidates” and “were the vehicles for the destruction of the government and the LegCo.”
The prosecutor added that there might be contradictions between defendants’ mitigation submissions and evidence heard in the upcoming trial, and the court would not have the chance to determine what was correct if it sentenced those who pleaded guilty before their co-defendants were tried.
‘Very comprehensive’ summary of facts
Senior Counsel Margaret Ng, who represented former lawmaker Gary Fan, said there was a “very comprehensive,” 139-page summary of facts detailing the circumstances of the case and each defendant’s role in detail – which her client had agreed to accept.
Ng said it would be “unfair” if any evidence emerged in the trial that were to affect Fan’s sentencing.
The panel of three judges said they would provide their reasoning for deciding to sentence those who pleaded guilty after the trial at a later date, without specifying when.
Most of the defendants who appeared on Wednesday have been denied bail on national security grounds except Wong Ji-yuet and Hendrick Lui. Joshua Wong has been kept behind bars for over 25 months and the rest have spent more than 22 months in remand.