Hong Kong judges’ reasons for convicting 14 democrats of subversion conspiracy under national security law
Hong Kong Free Press
Fourteen Hong Kong pro-democracy figures have been found guilty of taking part in a conspiracy to commit subversion under the Beijing-imposed national security law over their involvement in an unofficial primary election held in July 2020.
After Thursday’s verdict, they now join 31 former lawmakers and activists who earlier pleaded guilty to that charge in awaiting sentencing. The maximum penalty is life in prison, while the minimum sentence – under a three-tier system laid out by the security legislation – is “fixed term imprisonment of not more than three years, short-term detention or restriction.”
Two of the 47 democrats prosecuted in February 2021 – Lawrence Lau and Lee Yue-shun – were acquitted on Thursday, becoming the first two people tried under the security law to be cleared of their charges since it was enacted in July 2020. Government prosecutors soon announced they intended to appeal their acquittal, however.
In a 319-page court document, the judges explained the reasons for their rulings, rebutted a number of the defence’s arguments and called three defendants or the evidence that they gave “unreliable.” The court mainly assessed the defendant’s knowledge of the scheme, whether were party to the scheme, and whether they had an intention to subvert the government.
A ‘lethal constitutional weapon’
The primary poll at the centre of the case, held just weeks after the law came into effect, was designed to help the city’s pro-democracy camp determine which candidates would be best placed to help them win a controlling majority in an upcoming Legislative Council (LegCo) election.
Prosecutors alleged that the democrats saw a legislative majority as a “lethal constitutional weapon“ and intended to abuse the powers conferred to lawmakers by the city’s mini-constitution to indiscriminately veto bills – such as the budget – forcing the chief executive’s resignation and a government shutdown.
During the trial, the prosecution cited three main documents to argue their case against the democrats, including an online declaration known as “Resolute Resistance, Inked Without Regret,” which was signed by 33 defendants who ran in the primary election.
Signatories endorsed the five demands made by Hong Kong protesters in 2019, and said they intended to use the power conferred to lawmakers under the Basic Law to compel the chief executive to respond to those demands, including by vetoing the budget.
Leung Kwok-hung
According to the three national security judges – Andrew Chan, Johnny Chan and Alex Lee – former lawmaker and co-founder of pro-democracy party League of Social Democrats (LSD) Leung Kwok-hung attached a copy of his election platform reading “Five demands, not one less” to his nomination form for the primary elections. He stated the importance of lawmakers’ vetoing power in his election leaflet, the judges added.
“As a former LegCo member and a veteran politician, we were sure that he was fully aware of the dire consequence of persistent vetoing the budgets by the majority members of the LegCo. No doubt he would have known that it would cause serious adverse consequences on the operation of the Government,” the judgement read.
The judges also said the LSD published an article in May 2020 about obtaining “‘full vetoing power’ to counteract the tyranny.” Leung was “fully aware” of the plan to seize a majority in the legislature and veto the budget, the judges added. Leung did not testify during trial.
Gwyneth Ho
Journalist-turned activist Gwyneth Ho was described by the judges as one of the participants who “held the most radical political view.” She wanted to “uproot” the political structure and opposed the One Country, Two Systems principle under which Hong Kong is governed, the judges said.
Citing her Facebook posts, an opinion piece published in the Los Angeles Times, and election pamphlets, the judges said Ho’s stance on the plan to achieve a legislative majority was “very consistent.”
“[Ho] wanted to undermine not only the duties and functions of the government, but the legitimacy of it as well,” the ruling read.
“Perhaps she was one of those who would describe [Benny Tai] as non-radical and non-progressive,” it continued. Former law professor Tai, who was said to have initiated the plan, was among those who pleaded guilty.
The court rejected Ho’s testimony that the sole reason for her to join the primary election was to encourage people to vote and draw international attention with a big turnout.
“What [Ho] really wanted was a completely new political system and structure, as she said repeatedly that the existing one had been dysfunctional and [was] unable to serve the people of Hong Kong,” the ruling read.
The judges also commented on Ho’s conduct in court, saying she had raised several objections “when something said or done apparently was not in accordance to her understanding or instruction.”
“We found [Ho’s] evidence in court not credible and not reliable.”
Lam Cheuk-ting
Former Democratic Party lawmaker Lam Cheuk-ting, who did not testify in court, was said by the judges to have intended to seriously interfere in, disrupt or undermine “the performance of duties and functions of the Government with a view to subverting the State power.”
The judges noted that Lam did not sign the Inked Without Regret declaration, did not attend any coordination meetings, and did not publish any articles on social media. But they said Lam participated in an election forum in June 2020, and debate notes made for the forum were found at his residence on the day of his arrest.
The debate notes mentioned that the aim of the election was to win a democratic majority, and that Democratic Party chair Wu Chi-wai – who pleaded guilty to the subversion charge – had said the party would actively use its power to veto the budget.
“Given the fact that the Debate Notes were prepared at the time when the budgets had not come in sight, we drew the irresistible inference that [Lam] intended to vote against the budgets irrespective of their merits and contents,” the judges wrote.
The judges added that Lam’s election leaflets said the aim of the primaries was to force the government to respond to the five demands.
Owen Chow
Activist Owen Chow, a member of the resistance camp and who testified in court, was said by the judges to hold “a more radical belief or stance in his political ideology.” Chow was one of the authors of the Inked Without Regret declaration, the judges said, adding that he “also acted as its custodian and guardian” by creating a Google Word document for people to sign and copy.
Owen’s campaign slogan, “Reject colonisers, national resistance against tyranny,” described Hong Kong as “being colonised and governed by the tyrannical Mainland China” as stated in a June 2020 Facebook post, the judges wrote. Saying the post was “radical” would be an understatement, they added.
The activist said during an election forum that he was determined to resort to violence in the Legislative Council and exhaust “all means to paralyse” the legislature. The judges said they rejected Chow’s statement in court that the violence he referred to was “confined to self-defence,” saying that they had no doubt Chow – a member of the localist resistance group – aimed to “resist and fight by whatever means.”
Tat Cheng
In finding ex-Civic Party member Tat Cheng guilty, the court ruled that the former district councillor must have been aware of the party’s agreement to join Tai’s project and had agreed to the scheme by March 2020.
Although Cheng testified that he had expressed disagreement to the scheme, he attended subsequent press conferences organised by the party and did not say or do anything to show his disagreement, the judges wrote.
Citing a Facebook post from Cheng in June 2020, which mentioned pro-democracy candidates would “force the chief executive to step down by voting different proposals,” the judges said he must have bene aware of such content.
Cheng had told the court that the party changed its stance following the enactment of the national security law. But revising and replacing the election platforms was merely a “calculated move” taken to mitigate risk of disqualification, the court ruled.
“We come to the sure conclusion that [Cheng] intended to follow the party’s line on vetoing so as to fulfil his dream of becoming a legislative councillor,” the judges wrote, adding Cheng’s departure from the party in December 2020 was because of frustration and the “dashing of his dream.”
Ricky Or
Former district councillor Ricky Or did not testify in the trial, but his election manager, Cyrus Chan, was called as a defence witness. The judges said they found Chan’s evidence to be “unreliable and far from any truth.”
Chan told the court that Or was busy with work and did not follow political developments closely, the judges said. But they said it was noted in Or’s election leaflets that he had been active in politics for many years. Chan’s words appeared to be an attempt to distance Or from politics, the judges added.
The witness also told the court he did not receive any documents from the primary organisers, a statement that the judges said was “illogical and unbelievable” given Or was participating in “such a huge project.” Chan was trying to “paint a picture of [Or]’s limited knowledge” of the scheme, the judges wrote.
According to the judges, Or also published a May 2020 article “stating that there was no council chamber but resistance front only.” The “irresistible inference” was that Or would not examine any budgets or government policies, they said.
Winnie Ho
Winnie Ho, the former chairperson of the pro-democracy Hospital Authority Employees Alliance, aimed to bring about “a sea change in the political system” by running in the primary, the judges said. The activist, who testified in the trial, ran in the primary’s health sector.
The judges relied on a number of interviews she gave to reporters and op-eds that she published in ruling that she was guilty of the conspiracy charge. In an InMedia op-ed published in April 2020, Ho wrote that the activists would “veto all motions from the government from day one of joining the Legislative Council… thereby creating a constitutional crisis.”
In an August 2020 interview with InMedia, Ho said she hoped to “break the [current] situation and create something new.” The judges also referred to an interview published by InMedia in April 2020, in which Ho said the activists “must overthrow this regime… or there won’t be any change.”
The judges said they “refused to accept her evidence that she would be prepared to negotiate with the Government or to make compromise[s]” based on those public statements. Even though Ho did not take part in any coordination meetings, she had the intention to subvert state power, the judges wrote.
Gordon Ng
Gordon Ng, an activist, did not run in the primary polls but was in “frequent communication” with Tai – described by the prosecution as the “mastermind” behind the conspiracy – and was the initiator of the “Say No to Primary Dodgers” campaign. The campaign urged voters not to cast a ballot in the upcoming LegCo election for candidates who had not taken part in the primary.
The judges cited posts on the campaign’s Facebook page in which Ng described the Chinese Communist Party as an “unscrupulous antagonist and he appealed to the voters to resist and fight.” In another post, Ng said the aim of the primaries was to “kick out” the Chinese Communist Party.
Ng also paid for a front-page advertisement of the campaign in Apple Daily, the judges said, with a transaction slip found at Ng’s home showing a transfer of HK$135,000 to the now-defunct media outlet.
Ng did not testify. The judges wrote that what Ng said on social media “cannot be explained on the basis of mere election rhetoric.” Even though the Say No to Primary Dodgers campaign was initiated by Ng alone, the judge said they were “sure” that he formed an agreement with Tai.
Clarisse Yeung
Ex-Wan Chai District Council chairwoman Clarisse Yeung was convicted over her knowledge that the use of vetoing power was an important element of Tai’s plan of achieving a legislative majority. Her endorsement of the Inked Without Regret Declaration was also considered “strong evidence” against her.
The court cited her attendance at a press conference in July 2020, when Tai mentioned the goal of his plan was to seize control of the legislature and exercise what he saw as a constitutional power to “make the HKSAR government accountable.” On the same occasion, another primary election candidate, Lau Chak-fung, said the democrats elected would veto the government’s “unjust budget.”
“[W]e are not saying that [Lau’s] words represented [Yeung’s] position. The point is that [Yeung] heard what [Tai] and [Lau] said,” the judges wrote.
Although Yeung identified as a politically independent, the court ruled that she had considered herself to be a democrat. The ex-district councillor did not connect voting down the budget with protesters’ five demands, but she saw the Hong Kong government as “unjust” and so she would have vetoed the budget, the court said.
“Based on our finding of [Yeung’s] knowledge of the objective of the scheme and her experience as a district councillor… she intended to act together with other pro-democrats in LegCo and vote against the budgets indiscriminately regardless of their merits,” the judgement read.
Michael Pang
The judges ruled that former district councillor Michael Pang fully endorsed Tai’s project to indiscriminately vote against the budget and force the city leader to respond to the five demands.
Pang had described the budget and the city’s legislature as “unjust,” and linked Tai’s project with “resistance in LegCo,” “mutual destruction” and five demands,” the court said. While Pang told the court that he was interested in exploring business opportunities in the Greater Bay Area and wanted to facilitate young entrepreneurs with government funding, the judges did not see it as proof that he had no intention to veto the budget nor undermine the government.
“Viewing in this light, there was no necessary contradiction between [Pang]’s asserted business inspiration on the one hand and the anti-government political agenda contained in his election publication on the other,” the judgement read.
The court also commented on Pang’s testimony in court: “having observed [Pang] testifying in court, we find that he is an opportunistic and incredible witness who gave self-serving evidence.”
Kalvin Ho
In convicting Kalvin Ho, former vice-chair of the Hong Kong Association for Democracy and People’s Livelihood (ADPL), the judges said they found him to be an “unreliable and dishonest.”
The court rejected Ho’s evidence that he and party chairman Sze Tak-loy did not share a uniform view on the issue of vetoing government budgets. It would be “politically disastrous” for Ho and Sze to speak differently on the issue, the court said. The court also cast doubt on Ho, who claimed the caucus of ADPL never discussed the party’s stance on voting down the budget.
“In our judgement, the exculpatory explanations of [Ho] are incredible and unreasonable,” the judges wrote.
The court also ruled that Ho was well aware of Tai’s objective, citing his attendance of two coordination meetings and a copy of a document that stated the consensus of candidates of the Kowloon West geographical constituency.
Ho had testified that after being elected to the legislature, the democrats could choose which power conferred by the Basic Law to exercise. But the court said such a claim was “absurd.”
“We are sure that [Ho] knew that indiscriminately vetoing of the budgets would result in a constitutional crisis and the ensuing paralysing effect on the operations of the Government. He just put the blame on the Chief Executive and the Communist Party of China as the prime culprits for the ‘Mutual Destruction’,” the judgement read.
Helena Wong
As a member of the Democratic Party, the court ruled that ex-legislator Helena Wong had knowledge of the scheme and must have discussed the issue of vetoing the budget with other candidates from the party.
Citing her experience as a lawmaker, the judges ruled that Wong must know that the government would never agree to the five demands.
“With [Wong’s] experience in the LegCo, she must be aware that indiscriminate vetoing of the budgets would result in a constitutional crisis with the effect of paralysing the operations of the Government,” the judges wrote.
The court also referred to statements made by then-Democratic Party chair Wu. During a civil forum held in July 2020, Wu was said to have pledged primary candidates would “definitely use” their power to veto the budget to force the government to respond to the five demands.
“What [Wu] said in the said civil forum is admissible evidence against [Wong] under the Co-conspirator’s Rule,” the judges wrote.
Sze Tak-loy
The court found Sze Tak-loy, former chairman of ADPL, had knowledge of the scheme and was party to it. The judges rejected his evidence that he thought the first clause of the Inked Without Regret declaration was not binding. The clause stated that the signatory would endorse the five demands and would exercise the power conferred to lawmakers to veto the budget and force the chief executive to respond to the five demands.
The court pointed to Sze’s Facebook posts, election leaflet, his speech at an election forum and a civil forum to show that he had said on many occasions that he would vote against the budget.
“The repeated representations about vetoing the budgets made by [Sze] could not be reconciled with his alleged understanding that vetoing the budgets was only a bargaining chip and that candidates could choose whether or not to exercise the vetoing power,” the judgement read.
The judges also rejected Sze’s argument that the stance he adopted was only an election strategy. What he said and did during the primary election deviated from the ADPL’s values, which included upholding China’s sovereignty and the One Country, Two Systems.
The court added Sze all along adopted the stance of vetoing the budgets indiscriminately, which would eventually disrupt the performance of functions and duties by the Hong Kong government.
Raymond Chan
Despite his absence from coordination meetings, the judges ruled that former lawmaker Ray Chan was fully aware of the intention to compel the government to respond to the five demands if the democrats were to secure a controlling majority in the legislature.
He also took part in the project with a clear objective which aligned with Tai’s, the court said.
Chan testified that he saw nothing in the online declaration that meant successful candidates had to adopt a unified stance on the issue of using the veto power. The court did not accept such evidence, as the judges said the declaration was “simple and straightforward.”
The ex-People Power legislator said in a video in July 2020 that candidates from various backgrounds would “work together to resist till the end,” including exercising the power conferred by the Basic Law to vote against the budgets. The court said such remarks by Chan were conveyed to “stage resistance.” Even though Chan testified that he did not mean what he had said, and that his intonation was “rather strong,” the court did not accept the explanation.
“The intonation and the choice of words were consistent with his previous utterances and conducts and also what he stated in his election leaflet. [Chan] in a nutshell played down his involvement and his knowledge regarding the Scheme in Court,” the judgement read.
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