The democratic primary election case has led to charges against 47 individuals for “conspiring to subvert state power” under the National Security Law in Hong Kong. Out of these, 45 have been convicted, with the court wrapping up the mitigation process for the first batch of 5 defendants yesterday.
Representing the first defendant, Benny Tai, senior counsel Senior Counsel Johannes Huang argued that the primary election was not illegal before the implementation of the National Security Law and that Tai had no leadership role after its enactment. However, the judge did not accept the argument that Tai’s role was minimal. Activist Jason Ng, who initiated the “3 Strikes, No Ballot” campaign, expressed support for the Hong Kong democratic movement in his mitigation letter, believing that democracy can help resolve societal conflicts.
Huang emphasized that Tai was not the primary instigator of the alleged subversion. He argued that penalizing the defendants for pre-National Security Law conduct would retroactively enforce the legislation.
However, Judges Chan Hing-wai and Chan Chung-hang used the analogy of someone planning a robbery well in advance to discuss whether the premeditation should factor in the sentencing. Huang countered that under common law, robbery has always been illegal, making the comparison unfit, and that rejecting budget bills before the National Security Law was legal.
Huang further pointed out that the alleged “conspiracy” in this case involved two stages – the citywide primary elections and blanket rejection of financial bills. But Judge Li Wai-tung asserted that the court had ruled organizing the primaries was not illegal, only subsequent actions were deemed unlawful. Li also mentioned that former defendant Jeffrey Choy claimed that Tai had allocated 1 million Hong Kong dollars for public opinion polls conducted by the Hong Kong Public Opinion Research Institute.
Huang acknowledged Tai’s leadership role before the National Security Law but emphasized that Tai could not control or direct anyone, and elected legislators would independently decide whether to veto bills. Two weeks after the National Security Law took effect, Tai announced he would step back, having no role in this case since he was not a candidate and would not be voting in the Legislative Council. The development of events was beyond Tai’s control.
Drawing comparisons to the movie “Star Wars,” Judge Chan likened the “35+” group to storm troopers and expressed the court’s need to identify who the “Darth Vader” was. He stated that the court would not factor in Tai’s post-National Security Law role or acts for sentencing considerations.
During the mitigation phase, Tai’s former colleagues, University of Hong Kong law professors Benny Chan Hung-yi and Simon Young, submitted letters. Huang summarized their contents, highlighting Tai’s contributions to the university and society through legal publications and award-winning teaching, advocating for the rule of law and genuine universal suffrage.
Huang also quoted a plea letter from Reverend So Wing-chee, emphasizing Tai’s Christian faith, significant contributions to the church, care for students and efforts in conflict resolution with the police.
Huang asserted that Tai always advocated for nonviolence and sincerely but mistakenly believed that the involved actions were not illegal. He cited interviews with pro-establishment lawmakers Regina Ip and Paul Tse, who admitted uncertainty about the legality of the primaries under the National Security Law.
Regarding Tai’s own plea letter, it mentioned that the “10 Step Plan” article was theoretical and not a step-by-step guide to reality. Judge Chan indicated that an earlier ruling had confirmed Tai’s aim to overthrow the “One Country, Two Systems” framework.
Defendants Agnes Chow and Ivan Lam were represented by defense counsel Lawrence Sham in their mitigation efforts. Sham argued that Chow voluntarily ceased her criminal activities, prevented co-defendant Jeffrey Choy, and even tried to persuade Benny Tai to halt. Sham also stated that Chow assisted the prosecution, strengthening the case, with the prosecution acknowledging her information’s value for the case’s development and requesting a sentence reduction by half.
The judge noted that only “supergrass” defendants who assist the prosecution and bear risks could receive more than a two-thirds sentence reduction.
Sham argued that Chow did not meet the criteria of a “supergrass” case and thus did not warrant a two-thirds sentence reduction, suggesting a downgrade in the sentencing rankings or a reduction of five to sixty percent. Judge Li described Chow’s testimony as useful, proposing a more substantial sentence reduction, yet Chow gestured a crossed hand.
Regarding Ivan Lam, Sham contended that Lam’s involvement was limited, having provided all feasible assistance to the prosecution, seeking a fifty percent sentence reduction. Judge Chan referred to his contribution as less valuable than Chow’s, while Judge Li mentioned that Lam at least proved the coordination meeting documents were sent to everyone involved.
Representing defendant Jeffrey Choy, senior counsel Michael Lai described Choy as fitting the criteria for a “supergrass,” with earlier written submissions requesting a two-thirds sentence reduction. However, the judge questioned whether the standard was met, prompting Lai to propose a forty to fifty-five percent sentence reduction. Lai highlighted Choy’s voluntary withdrawal from Facebook, provision of new information to the police, and his role as a moderate democrat during the 2019 Tai Koo clashes, underscoring the challenges Choy had faced.
Lawrence Sham, the defense counsel for activist Jason Ng, read out a 1,500-word plea letter written by Ng, detailing his support for the Hong Kong democracy movement and his beliefs in fair and regular elections as the best check against tyranny. Ng emphasized that his support was solely for the primaries and not for candidates pledging to veto budget bills. Sham reiterated that Ng had expressed his desire for primaries in interviews and emails, aiming to secure a majority in the Legislative Council rather than veto bills.
The prosecution had previously claimed that Jason Ng was a supporter of Benny Tai. In his plea letter, Ng mentioned his protest against the deviation of the primaries from their original purpose but without success. Sham clarified that Ng had discussed with Benny Tai but not with other defendants, never attended coordination meetings or the primaries, playing the role of an outsider. He requested the court to classify Ng as the lowest tier of the National Security Law grading system, sentencing him to up to three years in prison.
The first group of five defendants completed their mitigation yesterday, with defendants who participated in the Hong Kong Island primary set to undergo the process starting next Tuesday, July 2nd.