Three former leaders of a group which organised Hong Kong’s annual Tiananmen vigil have been convicted under the Beijing-imposed national security law for failing to give police information on members and other data.
Chow Hang-tung, Tang Ngok-kwan and Tsui Hon-kwong appeared on Saturday at the West Kowloon Magistrates’ Courts in front of designated national security judge, Principal Magistrate Peter Law. At next Saturday’s sentencing, they will face up to six months in jail and a HK$100,000 fine.
The three were former standing committee members of the Hong Kong Alliance in Support of Patriotic Democratic Movements of China. They were convicted of failing to comply with a notice from national security police demanding information, including personal information about standing committee members and staffers.
Two other defendants, Simon Leung and Chan To-wai, pleaded guilty earlier and were sentenced to three months in prison.
Under the implementation rules for the sweeping security legislation, the police chief, upon approval from the secretary for security, can issue notices to foreign or Taiwanese political groups and their agents to demand information such as financial records.
The magistrate ruled that the notice issued by the police was legal, and that only the information at the point when the police chief made his decision was relevant to the matter of legality: “Any subsequent information, no matter how significant it was, was irrelevant as the legitimacy had already been frozen at that point of time,” Law wrote in his ruling.
The Alliance, which for decades organised an annual mass vigil in Victoria Park, was first brought to court in September 2021, and the trial began on July 13 last year. The group disbanded following the prosecution of several of its members.
Chow, along with the group and two of its two ex-leaders, are also defendants in another national security case in which they are accused of inciting subversion. Chow has been remanded in custody since September 2021.
The city’s annual vigils commemorated victims of the 1989 Tiananmen crackdown in which hundreds, perhaps thousands, died when the People’s Liberation Army cracked down on protesters in Beijing.
The magistrate ruled that it was necessary to demand information from the Alliance. Since it “had been running actively with various entities and people abroad, it is necessary to explore their dealings, connections, monetary flows and asset in order to find out their affiliation and ultimate purpose,” Law wrote.
The police had also taken “an abstemious and self-restrained approach,” the magistrate said, as the demand for information “was constrained in terms of periods of times and nature.”
The magistrate also rejected the argument that it would be difficult to provide the requested amount of information in the statutory 14-day period.
The Alliance could have contacted the authorities using the contact point provided in the notice, “which could form a channel for some constructive and potential relief if necessary.”
The group’s “high-profile press conference” and open letter was also “a clear message to total refusal,” Law ruled.
Before 2020, the city was the only place on Chinese soil where authorities allowed public commemorative events. Authorities banned the 2020 and 2021 vigils citing Covid-19 health concerns.
Legality of the notice
The legality of the police notice demanding information became a key issue in the trial. The defence argued that it should not have been applicable to the Alliance, as the group was not an agent of foreign forces. The magistrate ruled that the prosecution did not have to prove that the subject of the notice was in fact a foreign agent.
The prosecution accused the vigil organiser of being the agent of an unidentified “Organisation 4,” saying the Alliance had received HK$20,000 from the group.
Senior counsel Philip Dykes had argued that in order for an organisation to be defined as a foreign agent, not only must it receive funding from an external source, it must also conduct activities for the benefit of the funds provider.
The senior counsel argued that this was not proven in the Alliance’s case.
Public Interest Immunity
Chow had argued that the failure to identify Organisation 4 made it difficult to prove her case.
The name of the organisation was among the list of undisclosed details in the case. The prosecution applied for a declaration of Public Interest Immunity (PII) before the beginning of the trial, arguing that disclosure of such information would damage the public interest.
Law ruled in May last year that the prosecution must disclose some of the materials, including search warrants and an investigation report. However, the magistrate also ruled that parts of the information be withheld or redacted, including the name of the officer who applied for the warrants.
The debate on the extent of materials protected under PII continued during the trial, with the defence arguing that the non-disclosure would harm the defendants’ right to a fair trial.
Apart from barring some information from being disclosed, the PII also covered what a witness could disclose while testifying in court.
Prosecution witness Hung Ngan, who is now the acting senior superintendent of the national security police, was given the option not to answer questions if doing so could risk disclosing protected information.
During cross examination, Hung refused to answer questions including the identity of Organisation 4.
On Saturday, the magistrate repeated his previous ruling on PII, and wrote that he did not see how “the non-disclosure of materials, other than which related to [the Alliance] and the defendants would undermine a fair trial.”
Law also accepted the prosecution’s argument that disclosure would “jeopardise the ongoing investigation,” not only into the Alliance, but also into other groups and individuals. He ruled that the information disclosed was “sufficient for purpose of conducting the defence case and ensuring a fair trial.”
“I am satisfied there is no possible detriment or disadvantage of any kind or degree to the defence,” the magistrate wrote.
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