The defence in the sedition trial involving Hong Kong media outlet Stand News has said the prosecution shifted ground in their arguments and introduced hundreds of articles beyond the initial evidence list.
The comments were made during the defence’s closing statements on Tuesday as the proceedings entered their 55th day of trial.
Chung Pui-kuen, former chief editor of Stand News, and Patrick Lam, former acting editor of the outlet, stand accused of conspiring to publish seditious publications along with the outlet’s parent company, Best Pencil Limited.
The trial, which began last October, initially relied on 17 allegedly seditious articles – including interviews, profiles, hard news reporting and opinion pieces – as the prosecution basis, according to the prosecution’s opening submission.
The prosecution, however, later introduced hundreds of articles as “supplementary evidence” to rebut Chung’s testimony, which, the defence said, was unfair.
The 17 allegedly seditious Stand News articles – click to view
- Profile of Gwyneth Ho, a candidate in the 2020 legislative primaries held by the pro-democracy camp, published on July 7, 2020.
- Profile of Owen Chow, a candidate in the 2020 legislative primaries held by the pro-democracy camp, published on July 27, 2020.
- Profile of Fergus Leung, a candidate in the 2020 legislative primaries held by the pro-democracy camp, published on August 12, 2020.
- Commentary by Chan Pui-man, Apple Daily’s former associate publisher, criticising speech crimes, published on September 12, 2020.
- Commentary by Nathan Law, a former lawmaker now in self-exile, on “how to resist” under the national security law, published on September 20, 2020.
- Profile of Law on his “battlefront” of calling for sanctions on the Hong Kong government in the UK, published on December 9, 2020.
- Commentary by Law on “resilience in a chaotic world,” published on December 13, 2020.
- Feature interview with Ted Hui, a former lawmaker in self-exile, after he fled Hong Kong with his family, published on December 14, 2020.
- Feature interview with Baggio Leung, a former lawmaker in self-exile, as he called for sanctions on Hong Kong and a “lifeboat scheme for Hongkongers,” published on December 15, 2020.
- Commentary by Sunny Cheung, an activist in self-exile, responding to being wanted by the Hong Kong government, published on December 28, 2020.
- Commentary by Allan Au, a veteran journalist, on “new words in 2020,” which included “national security,” “disqualified” and “in exile,” published on December 29, 2020.
- Commentary by Au calling a national security trial a show, published on February 3, 2021.
- Commentary by Law paralleling the mass arrests of candidates in the democrats’ primaries to mass arrests during Taiwan’s white terror period, published on March 2, 2021.
- Commentary by Au accusing the authorities of “lawfare” in usage of the sedition law, published on June 1, 2021.
- Commentary by Au describing Hong Kong as a disaster scene after the implementation of national security law, published on June 22, 2021.
- Feature about CUHK graduates’ march on campus to mourn the second anniversary of the police-student clash in 2019, published on November 11, 2021.
- Report on Chow Hang-tung’s response to being honoured with the Prominent Chinese Democracy Activist award, published on December 5, 2021.
In response to complaints that the prosecution had widened their scope, lead prosecutor Laura Ng said the prosecution can “contract or expand the prosecution basis when necessary.”
She added that the conspiracy extended beyond the 17 articles, and that those pieces were merely the editors’ “overt acts” – meaning selected examples that indicated their behaviour.
‘What exactly was the conspiracy anyway?’
The prosecution read out its closing statements on Monday and Tuesday.
Defence counsel Audrey Eu said that the prosecution introduced over 40 pieces of evidence in their statements, and named Tony Tsoi – the ex-director of Stand News who is now based overseas – as the “mastermind” of the conspiracy for the first time.
“If Tsoi was indeed the mastermind, the prosecution ought to name him in the charge sheet, but they did not,” Eu said.
“And what exactly was the conspiracy anyway?” Eu added. “When did the conspiracy form? Involving whom? What were the evidence showing such agreement was made?”
The defence counsel added that Ng had been inconsistent about whether Stand News was a “political platform.” She had also wavered on her definition of “political platform,” Eu said. She said Ng had said it was not a political platform at least twice earlier, but in her closing statements, said that all platforms that published reports related to the government were “political.”
“The prosecution introduced a vast amount of important arguments in their closing statement,” Eu claimed, adding that Chung and Lam should not be convicted simply because of this practice.
‘Seditious tendency’
Citing various legal cases from the colonial era, the lead prosecutor told the court on Monday that it was unnecessary for the prosecution to prove the seditious intent of the former news editors.
In Tuesday’s hearing, Eu questioned the value of using the cases as references, arguing that back then, prosecutors were not obligated to prove the defendants’ seditious intent as it was legally presumed.
However, this changed when the presumption of innocence was established in Hong Kong, the defence counsel said.
“The prosecution, on one hand, said the colonial government employed the sedition law to suppress people and restrict the freedom of expression, yet on the other hand they utilised the law themselves,” Eu added.
If seditious intent was not an essential element to the offence, Eu said the enforcement of the law would become subjective and arbitrary, citing the police and the prosecution handling the Stand News case as an example.
The senior counsel also questioned the prosecutor’s assertion that the articles had indicated the “seditious tendency” of the two former editors: “What does ‘seditious tendency’ mean? Are the articles seditious or not?”
Foreseeability
Ng also said on Monday that the focus of the trial should be whether the materials were seditious, and whether the editors knew they were seditious.
The prosecutor said even though the articles published by Stand News were generally of “high quality,” the editors should have foreseen that some “radical” members of society might be incited by their coverage.
Eu refuted the argument by saying that all news outlets, including newspapers and broadcasting channels, would publish their content online, too.
She said according to the prosecutor’s logic, journalists would have to take on the responsibility of psychiatrists if they were required to prioritise the needs of mentally vulnerable individuals when creating news content.
The trial continues on Wednesday.
2021 arrests and outlet closure
The non-profit digital news outlet Stand News ceased operations and deleted its website in December 2021 after its newsroom was raided by over 200 national security police officers. Seven people connected to the independent outlet were arrested on suspicion of conspiring to “publish seditious publications.” However, only ex-chief editor Chung, acting chief editor Lam and parent company Best Pencil (Hong Kong) Limited were charged.
Advocacy groups, the UN, and Western countries criticised the arrests as a sign of declining media freedoms, while then-security chief John Lee condemned “bad apples” who “polluted” press freedom following the raids.
The trial began in October 2022 with the court considering 17 allegedly seditious articles. Sedition carries a maximum penalty of two years behind bars.
Clarification 28/6/2023: The headline of this article was changed to remove the quote “took us in circles” to better reflect the position held by the defence.
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