Lawyers for four Hong Kong pro-democracy figures in a landmark national security trial have asked judges to dismiss a subversion charge, saying the prosecution failed to provide enough evidence to build a case against their clients under the security law.

47 democrats names memo stickers
The names of the 47 Hong Kong pro-democracy figures charged with conspiracy to commit subversion written on memo stickers. Photo: Supplied.

The defence team for former lawmakers Lam Cheuk-ting and Helena Wong, journalist-turned activist Gwyneth Ho and activist Gordon Ng told a three-judge panel on Thursday that the four had no case to answer.

They argued that the evidence presented by the prosecution was insufficient to prove that their clients conspired to commit subversion, an alleged offence related to an unofficial legislative primary election in July 2020. The poll aimed to pick the strongest candidates to help the opposition camp secure majority control of the 70-seat legislature, prior to the city’s electoral overhaul.

According to the prosecution, the democrats agreed to abuse their powers as lawmakers, if they were elected with a majority, to indiscriminately veto any government budget or public expenditure. They also intended to compel the chief executive to dissolve the Legislative Council, to paralyse government operations, and cause the city’s leader to step down, prosecutors alleged.

Representing Lam and Wong, barrister Erik Shum cited the prosecution’s opening remarks in February, where it was claimed that the defendants conspired to subvert state power by “unlawful means.” There was no clear definition of “unlawful means,” Shum said, pointing to a local provision which specified behaviour deemed to be upholding or breaching the Basic Law and allegiance to the city.

Lam Cheuk-ting
Lam Cheuk-ting. File Photo: Holmes Chan/HKFP.

According to section 3AA of the Interpretation and General Clauses Ordinance, anyone who indiscriminately objects to government’s motions with an intent to threaten the government would be seen as committing acts that undermine or have a tendency to undermine the city’s political structure.

But the section was only added on May 21, 2021, as part of a legislative amendment to expand the requirement of taking an oath of allegiance to the government to apply to all public officers. The date was beyond the time period of the alleged offences as stated by the prosecution, which ran from July 1, 2020 to January 7, 2021, Shum told the court.

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“There is a vacuum in the law,” the counsel said, adding the prosecution must prove that the defendants intended to force the chief executive to step down and dissolve the Legislative Council.

Prosecutor Jonathan Man Tak-ho responded by saying that the new provision only explained the legal status that was “already in existence,” adding the behaviour in question was restricted by law prior to the addition of the section.

“All the co-conspirators made a joint mention. They conspired to, once they achieved majority in the LegCo, to use vetoing as a bargaining chip [against the government],” he said.

Unspecified purpose

Regarding Gordon Ng’s application for “no case to answer,” his barrister Yvonne Leung said he took part in the primary, but the prosecution could not prove his purpose was to indiscriminately veto the government’s budget.

The three hand-picked national security judges – Andrew Chan, Alex Lee and Johnny Chan – will rule on the four defendant’s applications on Friday. If the court sides with the defence, the four democrats will become the first people acquitted under the Beijing-imposed security law.

Gwyneth Ho
Gwyneth Ho. File photo: Gwyneth Ho, via Facebook.

A total of 16 democrats are currently on trial after they pleaded not guilty, whilst 31 pleaded guilty  – of those, four are acting as witnesses for the prosecution during the 90-day trial. Many of the defendants have been detained for more than two years while waiting for the case to move to trial.

Critics say the case is a political prosecution exemplifying the crackdown on dissent, whilst the government has claimed the 47 sought to “organise, plan, implement, or participate in” subversion. The scholars, lawmakers, activists and a journalist face three hand-picked judges, with no jury, and could be jailed for life.

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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Mandy Cheng is a reporter at Hong Kong Free Press. Previously, she worked at Ming Pao, focusing on investigative and feature reporting. She also contributed to Cable TV and others.