Hong Kong prosecutors have identified a long list of exhibits, including newspaper articles and Facebook posts, on which they plan to rely to implicate 47 pro-democracy figures in the city’s largest national security case.

Tat Cheng 47 democrats
Defendant and former district councillor Tat Cheng outside the West Kowloon Law Courts Building on February 27, 2023. Photo: Kyle Lam/HKFP.

The prosecution on Monday set out the scope of the co-conspirators rule – a legal principle often used to establish the existence of a conspiracy and the roles of those involved – they intended to apply in the high-profile trial of former lawmakers, ex-district councillors, a former journalist and other activists under the Beijing-imposed security legislation.

The co-conspirator rule allows for statements made outside court by an alleged co-conspirator to another to be admitted as evidence against all involved.

Sixteen democrats are facing a no-jury trial and up to life in prison if convicted after they denied taking part in a conspiracy to commit subversion in connection with an unofficial primary election held in July 2020. The case originally involved 47 defendants, 31 of whom have pleaded guilty to the charge.

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  • Prosecution witnesses 47 democrats post

The primaries aimed to help the opposition camp secure majority control of the Legislative Council. The democrats were said to have intended to abuse their legislative powers to indiscriminately veto bills, forcing the chief executive’s resignation and a government shutdown. 

Deputy Director of Public Prosecutions (I) Jonathan Man Tak-ho on Monday told the panel of three handpicked national security judges presiding over the trial that they had put together a list of evidence they intended to use under the co-conspirators rule to prove defendants’ involvement in the offence.

It was revealed in court that the document contained 25 pages and included articles written by different defendants published by various news outlets. It also covered Facebook posts, video clips and video transcripts, the prosecutor said.

47 democrats Clarisse Yeung
Defendant and former district councillor Clarisse Yeung outside the West Kowloon Law Courts Building on February 27, 2023. Photo: Kyle Lam/HKFP.

The judges and a number of defence counsels asked the prosecution to clarify whether all of the listed exhibits would be used against all defendants. Representing former lawmakers Lam Cheuk-ting and Helena Wong, barrister Erik Shum said “the net is very wide,” adding the prosecution should consider narrowing the scope.

“The answer from the prosecution is very simple, just one word, yes, implicating all defendants,” Man said.

Legal disputes concerning the application of the co-conspirators’ rule should be dealt with at a later stage, High Court judge Alex Lee said. He predicted that there may be arguments on whether the rule could be applied on a conspiracy that predated the enactment of the security law in June 2020. The prosecution argued that an agreement had been formed by February 15, 2020, at least by former law professor Benny Tai and ex-legislator Au Nok-hin.

Potential arguments may also arise from whether the co-conspirators rule could be applied to defendants who were yet to become part of the conspiracy.

Lawrence Lau 47 democrats
Defendant and barrister Lawrence Lau outside the West Kowloon Law Courts Building on February 27, 2023. Photo: Kyle Lam/HKFP.

The trial was adjourned to Wednesday for the defence to review the lengthy document and take instructions from their clients. Man also said the prosecution had no further questions for Au, the first accomplice witness who testified for the prosecution against his fellow democrats. The defence is expected to start cross-examining the ex-Democratic Party politician earliest on Wednesday.

“I think it’s fair to give time for the defence to consider this lengthy document,” High Court judge Andrew Chan said.

Monday marked the beginning of the fourth week into the democrats’ landmark trial which began on February 6. Some activists have been incarcerated for nearly two years awaiting the case to move to trial, with only 13 of the 47 defendants currently on bail.

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.

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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.