Prosecutors must have proven that Hong Kong pro-democracy figures at the centre of a landmark national security trial had used violence and intended to subvert state power if they are to be found guilty, two lawyers representing defendants have argued as the city’s largest security law trial to date came to a close.
Closing submissions came to an end on Monday, 10 months after proceedings in the trial against 16 of the defendants who pleaded not guilty to conspiring to commit subversion under a sweeping security law imposed on the city by Beijing in 2020.
Steven Kwan, representing ex-District Councillor Lee Yue-shun, made a submission on behalf of most of the defendants on Monday morning, responding to arguments put forth by lead prosecutor Jonathan Man last Wednesday.
Man 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.”
Kwan on Monday argued that the “unlawful means” laid out in Article 22 law was a “red herring.” To be found guilty of committing subversive acts, a defendant must have used or threatened to use violence, he argued.
Judge Alex Lee then asked whether someone committed an offense if they mounted a cyberattack on a government computer system, causing the executive branch, the judiciary, and the legislature to grind to a halt. Judge Andrew Chan asked whether waging chemical warfare with Covid or Anthrax would amount to subversion.
Kwan said those offenses would amount to terrorism, and not subversion of state power, adding that such an interpretation of the provision suggested the existence of a loophole.
Separately, barrister Trevor Beel, representing journalist-turned-activist Gwyneth Ho, argued that a defendant would have to fulfil certain requirements under Article 22 of the national security law to be liable for conviction, including organising, planning, committing or participating in one of the four acts of subversion, “by force or threat of force or other unlawful means.”
On top of that, a defendant must have had an intent to subvert state power, Beel said, adding that intent to commit subversion depended on the definition of the offence, which he said had not been set out by China’s top lawmaking body, the Standing Committee of the National People’s Congress (NPCSC).
The four subversive acts laid out in Article 22
- (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
- (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.
Ho is among the 47 democrats charged with conspiring to commit subversion in a case that centres around an unofficial legislative primary election held in July 2020.
Most of the defendants have been detained since a marathon bail hearing March 2021, after being taken into police custody on February 28, 2021. Prosecutors have alleged that the democrats intended to abuse their powers as lawmakers – if elected – to indiscriminately vote down government bills and paralyse government operations.
Ho, a former journalist who worked for outlets including RTHK, Stand News and the BBC, was among the candidates who ran in the primaries.
Beel directed the court’s attention to a proposed 2003 national security bill that never passed for a definition of the offence, to which judge Alex Lee said that it was not local legislation that should be of concern, but rather, the legislative intention of the NPCSC.
Beel then went on to say that such a construction of the national security law was against common law tradition, arguing that while ignorance could not be a defence, the law must be accessible and it should be easy for people to discover what might amount to a criminal act.
“You should be in a position to find out that what you’re doing is against the law,” Beel argued, adding that the law must also be clear on an international level.
Ho in July told the court that she would have voted to veto the budget if she had become lawmaker, adding that had been her position when she was still working as a journalist in 2011.
Beel said on Monday that the onus was on the government to show lawmakers that its budget was worth voting for, referring to Ho’s earlier criticism of the Capital Works Reserve Fund, which “makes up one-sixth of the budget” to support infrastructure projects but cannot be debated by lawmakers individually, as a “black hole in public finances.”
He also quoted security chief Chris Tang as saying that details regarding funding for the national security department of the city’s police force were confidential to keep people from knowing about the inner workings of the department.
“If it can’t be examined, can’t a legislator vote against it because of the fact that they can’t examine it?” Beel asked.
“This charge of conspiracy is like no other charge that has come before the courts,” Beel said, concluding his arguments. “Everything was conducted openly for the simple reason that nobody knew what they were doing was illegal.”
The judges approved the defence application for Lee Yue-shun’s curfew to be lifted – he is one of 13 defendants currently on bail – before Judge Andrew Chan said a verdict would be tentatively delivered in three to four months. However, Chan added that “no guarantees” would be made as Judge Lee still had another national security case to handle — that of detained media tycoon Jimmy Lai.
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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