The second week of a landmark national security trial relating to 47 Hong Kong pro-democracy figures saw a former legislator testifying against his co-defendants. Meanwhile, three handpicked judges heard that democrats were divided over candidate selection methods in the unofficial primary polls.

The high-profile trial began on February 6, almost two years after the democrats were first charged in March 2021 with one count of “conspiracy to commit subversion” under the Beijing-imposed national security law. They face up to life imprisonment if convicted.

Au Nok-hin
Au Nok-hin. File photo: Legislative Council, via Flickr.

The case centres around an unofficial primary election held in July 2020, which aimed to help the opposition camp win majority control in the Legislative Council. The democrats are accused of planning to use legislative powers to indiscriminately veto bills, whilst forcing the chief executive’s resignation and a government shutdown. 

Some activists have been jailed for more than 23 months awaiting the case to move to trial, with only 13 of the 47 defendants currently on bail.

  • 47 democrats pleaded not guilty 1
  • 47 democrats pleaded not guilty 2
  • 47 democrats pleaded guilty 1
  • 47 democrats pleaded guilty 4
  • 47 democrats pleaded guilty 2
  • 47 democrats pleaded guilty 3
  • Prosecution witnesses 47 democrats post

More than 600,000 people cast their ballots in the primary election, but the government later declared that the primaries were “not part of the electoral procedures” of any public elections. China’s liaison office also condemned the polls as illegal and a breach of the security legislation.

Here are some key points discussed in the trial this week:

Ex-legislator Au Nok-hin was brought to court on Monday afternoon as prosecutors summoned him as their first witness. The 35-year-old, who was a member of the Democratic Party between 2009 and 2017, revealed that his involvement in the primaries began at a meal gathering in January 2020, when he met with legal scholar Benny Tai and other veteran activists.

‘Constitutional weapon’

According to Au, the pro-democracy camp sought to repeat their victory in the District Council election held in November 2019, when the city was gripped by large-scale protests triggered by an extradition bill. They saw the legislature as a means to fulfil the five demands put forward by pro-democracy protesters, he said.

Au Nok-hin
Au Nok-hin. File Photo: Kris Cheng/HKFP.

He also quoted Tai, a former law professor at the University of Hong Kong, as saying that a legislative majority in the hands of the democrats would become a “constitutional weapon with mass destruction.”

Division among democrats

During his testimony on Tuesday and Wednesday, Au said the democrats had mixed reactions to Tai’s idea of “proactively exercising” a lawmaker’s power enshrined in the Basic Law to veto government budgets.

According to Au, Tai had suggested adding the line to a document which summarised the plan to win more than 35 seats in the legislature. The legal scholar also said such constitutional power should be exercised “if the government did not listen to public opinion.”

While some democrats backed Tai, the League of Social Democrats said they would support the budget if it included a universal retirement scheme or other projects concerning people’s livelihood.

democrats pro democracy 35+ legco legislative council primary election 2020 september au nok hin andrew chiu benny tai
Benny Tai. File photo: Rachel Wong/HKFP.

The opposition was also split on the voting method to be used in the unofficial polls, with traditional political parties showing preference for actual ballots, as some had concerns that using only electronic votes may favour candidates who were “more radical.”

Division also arose when the democrats discussed ways of selecting replacement candidates to run in the LegCo election in case of disqualification by the government. Prominent activist Joshua Wong preferred using an appointment system, in which the disqualified candidates would pick their own substitute, while activist Tam Tak-chi said the replacement should be chosen based on the result of the primary election.

Assisting police in Sept 2021

On Thursday, it was revealed in court that Au was already assisting the police in September 2021, around six months after the democrats were charged. He indicated to a lower court in the same month that he would plead guilty, when the case was still at the committal stage.

The revelation came as judges asked the former lawmaker about a WhatsApp group created for primary election candidates belonging to the New Territories East constituency.

Democrat primary election
Democrat primary election held in July 2020. File Photo: Studio Incendo.

Au told the court that he had to “look at Andrew Chiu’s phone” to recall the conversation in the chat, adding he was shown Chiu’s WhatsApp records in September 2021. Chiu is also a defendant in the case and has pleaded guilty to the charge.

The democrat also confirmed that the records were presented to him after his arrest.

“When you were already assisting the police?” Lee asked.

“Correct,” Au replied.

‘Not a memory game’

Au was reminded by High Court judges Andrew Chan, Alex Lee and Johnny Chan on numerous occasions that did not have to “recite” his testimony.

The former lawmaker on Wednesday was asked to recall which people attended a coordination meeting for the Kowloon East constituency. Au told the court that he was worried that he might miss some names when he “recited” them.

Lee, Alex 李運騰.JPG
Justice Alex Lee. Photo: Judiciary.

“You are not here to recite anything… you are here to tell us what you remember,” Lee told the defendant.

Lee gave a similar reminder on Thursday when Au was asked to name the participants of a WhatsApp group.

“I understand that we are talking about matters from years ago, and I don’t expect you to have a photographic memory. This is not a memory game,” he said.

Election forums

Since Thursday afternoon, prosecutors began playing videos of primary election forums filmed at the headquarters of the now-defunct Apple Daily. The democrats had partnered with a number of media outlets, including the now-shuttered Stand News and online radio station D100 to broadcast the forums.

Helena Wong outside the West Kowloon Law Courts Building on February 9, 2023. Photo: Kyle Lam/HKFP.
Helena Wong outside the West Kowloon Law Courts Building on February 9, 2023. Photo: Kyle Lam/HKFP.

Defendants and court attendees watched clips showing candidates of the Kowloon West constituency firing questions at Democratic Party politician Helena Wong, who was criticised for not showing support for protesters during the 2019 unrest.

Some defendants said they must protest against “tyranny,” while others described the Beijing-imposed security law as an “evil law.”

Defendants separated

During the first week of the trial, the 16 defendants on trial and nine activists who already pleaded guilty and chose to observe the proceedings were originally seated together in the dock of the main court room.

But the nine democrats were placed in different court extensions this week, where they could only watch a live broadcast of the hearing.

When asked why the seating arrangement was changed, the Judiciary told HKFP on Monday that judges had the power to give directions in relation to case management or other matters in court which may affect the execution of judicial work. “Different factors” were taken into consideration when the directions were made, it said.

In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.

Support HKFP  |  Policies & Ethics  |  Error/typo?  |  Contact Us  |  Newsletter  | Transparency & Annual Report | Apps

legal precedents hong kong
security law transformed hong kong
contact hkfp

Support HKFP  |  Policies & Ethics  |  Error/typo?  |  Contact Us  |  Newsletter  | Transparency & Annual Report | Apps

legal precedents hong kong
security law transformed hong kong
contact hkfp

Support HKFP  |  Policies & Ethics  |  Error/typo?  |  Contact Us  |  Newsletter  | Transparency & Annual Report | Apps

legal precedents hong kong
security law transformed hong kong
contact hkfp

Kelly Ho has an interest in local politics, education and sports. She formerly worked at South China Morning Post Young Post, where she specialised in reporting on issues related to Hong Kong youth. She has a bachelor's degree in Journalism from the University of Hong Kong, with a second major in Politics and Public Administration.