Recording a meeting of Hong Kong pro-democracy figures without their permission was not an intrusion of privacy, an anonymous witness for the prosecution has said during a high-profile trial relating to 47 democrats under the Beijing-imposed national security law.

Democrat primary election
An unofficial legislative primary election held in July 2020. Photo: Studio Incendo.

Local prosecutors called a new witness on Tuesday to give evidence against dozens of well-known politicians and activists who stand accused of conspiring to commit subversion by organising and participating in an unofficial legislative primary election held in July 2020.

The witness was granted anonymity on Monday, when a panel of three designated judges sided with the prosecution, which argued the individual – whose name had been made public before – should be protected from “further harm.”

Addressed as “X” in the courtroom, the witness gave their testimony from behind several white boards, which blocked journalists and court attendees in the public gallery from seeing the individual.

Some defendants in the dock tried to get a glimpse of the witness, with activist Owen Chow making a binoculars hand gesture.

The court on Monday barred the media and legal representatives from disclosing any information that may lead people to identify X. Those who failed to comply with the order could be held liable for contempt of court.

The witness was also allowed to access the courtroom via a special passageway.

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It was revealed in court on Tuesday that X made video and audio recordings at a coordination meeting held by the New Territories West constituency on May 8, 2020. A total of 11 video clips and two audio files were sent to the police anonymously in September or October 2020, the witness confirmed with prosecutor Andy Lo.

According to X, legal scholar Benny Tai had mentioned on multiple occasions that he wanted to “overthrow” the government with his plan of seizing majority control in the Legislative Council. The then-associate law professor at the University of Hong Kong has been described as one of two “primary movers” of the unofficial polls.

It was “very problematic” that Tai wanted to control the legislature to veto government bills and force the chief executive to step down, X told the court. They went on to say that they had purchased a recording pen and a video-recording device in early 2020, as they wanted to “make a record” of what would be discussed in the May 8th meeting for “research.”

The current trial concerns 16 democrats who pleaded not guilty to conspiring to commit subversion, a national security charge that is punishable up to life behind bars. Together with 31 defendants who pleaded guilty, the group was said to have intended to abuse their powers as lawmakers, if elected, to vote down government bills indiscriminately. The ultimate goal was to paralyse government operations and force the city’s leader to resign, prosecutors have alleged.

The court heard on Tuesday that the recordings were only sent to the police in September or October 2020, a few months after the national security law came into force in the late hours of June 30, 2020.

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Organisers of the primary elections at a press conference on June 9, 2020. Photo: Rachel Wong/HKFP.

While X gave two statements to the police in 2021, they did not tell police they were responsible for recording the video and audio clips sent to police. They did not want any trouble, the witness said when asked why they had supplied the materials anonymously.

High Court judge Alex Lee asked X if they recorded the audio and video publicly, and whether attendees of the meeting had been aware that they were recording. The witness said they were unsure, adding the recording pen had been in their pocket, while the video-recording device was in their hand or on the table.

When the judge followed up and asked if they had concealed their recording, X replied: “I remember no one at the scene said audio-recording was not allowed.”

Excerpts of the videos recorded by X were played in court. The footage was shaky, with the camera pointing to Tai and other attendees at times. It also pointed to the ceiling and was placed beneath a table occasionally.

During the defence cross-examination, X admitted that they had not sought approval from the hosts or participants of the meeting before recording them.

National security law
Photo: GovHK.

Barrister Peter Wong, who represented ex-district councillor Sze Tak-loy, asked the witness if it had occurred to them that recording the meeting without obtaining permission was intruding the privacy of the people present.

“I don’t think so,” X replied.

Another lawyer Trevor Beel asked whether X had recorded the meeting secretly because they did not want to let people know what they were doing. The witness denied the recording was made in secret, adding they had been “very open and above board.”

X also denied they were instructed by a third party to conduct the recording, nor were they given any reward for recording the meeting.

“I don’t know if the government would give me a good citizen award,” X told Beel.

Representing former lawmakers Lam Cheuk-ting and Helena Wong, barrister Erik Shum cast doubt on X’s claim that the meeting was recorded for research. The counsel grilled the witness on what they were trying to understand and what other actions they undertook as research.

X said they had repeatedly watched and listened to the video and audio they recorded. When judge Lee pressed them on what they meant by “research,” X said they wanted to “understand” whether Tai’s idea of vetoing the budget and consequently forcing the chief executive to step down was problematic.

“You are evading the questions. You just repeat what you have said. The question is simple. What research have you done apart from watching the clips?” Lee asked.

X responded by saying they went online to look up information on relevant laws but could not find anything because they “did not know such topics.”

The defence also questioned X’s testimony that Tai had told X he wanted to “overthrow” the government. The witness cited conversations with the legal scholar and said he mentioned forcing the city’s leader to step down, which X interpreted as an attempt to overthrow the government.

“It was only your conclusion from your conversation with Benny Tai,” barrister Anthony Yuen said.

Benny Tai
Benny Tai. File photo: Studio Incendo.

X confirmed with barrister Shum on Tuesday that they had worked as an assistant of a pro-establishment district councillor. But Shum’s line of questioning relating to X’s political affiliation, which the lawyer said could reflect the credibility of the witness, was stopped by the judges, who said it was not relevant.

X’s testimony was only about producing the video and audio evidence to the court, the panel told Shum.

X was not seen by journalists or members of the public during Tuesday’s hearing. During court breaks, members of the public were asked to vacate the courtroom before the unnamed witness was transferred to a waiting room.

The trial hearing was adjourned to Wednesday morning after X finished their testimony at around 4 p.m. The next witness to be called would be a returning officer, the prosecution informed the court.

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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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.