The prosecution in a landmark national security trial relating to 47 Hong Kong pro-democracy figures has argued for “a wide interpretation” of the security law as closing arguments began, almost 10 months after the trial first got underway.
According to one of the judges overseeing proceedings, a verdict may be delivered in three to four months, around three years after most of the defendants were denied bail.
The prosecution’s presentation centred on three arguments against a “narrow” understanding of the security law, lead prosecutor Jonathan Man told a panel of three designated national security judges on Wednesday, as the trial entered its 116th day.
The trial against the 16 pro-democracy figures who pleaded not guilty to conspiring to commit subversion over their roles in an unofficial primary election in July 2020 began in February. It had been adjourned since August, when the last defendant completed her testimony.
The prosecution examined the definition of “other unlawful means” as specified in Article 22 of the Beijing-imposed security law, which says people are guilty of subversion if they organise or conduct certain acts “by force or threat of force or other unlawful means.”
Article 22 of the National Security Law
A person who organises, plans, commits or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence:
(1) overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China;
(2) overthrowing the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region;
(3) seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region; or
(4) attacking or damaging the premises and facilities used by the body of power of the Hong Kong Special Administrative Region to perform its duties and functions, rendering it incapable of performing its normal duties and functions.
A person who is a principal offender or a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; a person who actively participates in the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and other participants shall be sentenced to fixed-term imprisonment of not more
than three years, short-term detention or restriction.
Man said Article 22 created two categories of activities under which national security could be endangered. The first was “force-related,” and the second was “all other means apart from force-related means.”
He claimed that the legislative purpose of the security law was to “punish, prevent, and suppress any endangering of national security,” and a narrow interpretation of the phrase “other unlawful means” would compromise the effectiveness of the law.
“It was meant to be a strong law,” he said. “That’s why we should interpret it in a wide way, instead of a very narrow interpretation.”
The prosecutor further argued that the interpretation of “unlawful means” should extend beyond criminal offences to consider people’s “basic attitude” towards the Basic Law – the city’s mini constitution – and the Hong Kong government.
He said that by organising an unofficial primary election in July 2020 with the purpose of gaining a majority in the city’s legislature – which would have allowed pro-democracy lawmakers to veto bills, forcing the chief executive out and a government shutdown – the defendants were breaching such “basic principles.”
Man argued that even if such acts may not be criminal offences, they would still violate the law for endangering national security.
“We are saying that the law is much wider than [criminal offences], in order to give force to national security law,” he said.
Man took aim at a defence argument that defendants genuinely believed in the legality of their actions. Man said the interpretation of the security law should not require a consideration of a criminal intention.
“No matter whether the defendant honestly believes what they are doing is lawful or not, it doesn’t matter,” he said.
Verdict ‘tentatively’ in three to four months
During Wednesday’s trial, judge Andrew Chan said a verdict may “tentatively” be delivered in three to four months, citing other cases slated to be handled by the three judges sitting in the panel.
Chan said he would be hearing a case on criminal contempt, while judge Johnny Chan would be handling a murder case. Meanwhile, judge Alex Lee will sit on another high-profile national security case involving media mogul Jimmy Lai and the now-shuttered pro-democracy tabloid Apple Daily, which is set to begin on December 18.
The closing arguments are expected to last for 10 days, with the defence beginning its submissions on Wednesday.
Most of the defendants have been detained since a marathon bail hearing in March 2021, with 13 currently out on bail.
Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers and led to hundreds of arrests amid new legal precedents, while dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs.
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