Hong Kong 47: Defence lawyer argues for lesser sentence saying subversion scheme only a ‘remote possibility’
Hong Kong Free Press
A defence lawyer in Hong Kong’s largest national security case involving 45 pro-democracy figures convicted of subversion has argued for a lesser sentence for his client on the grounds that a plan to veto the government budget only had a “remote possibility” it would have succeeded.
Ex-district councillors Tiffany Yuen, Fergus Leung, Tat Cheng, Andy Chui, Clarisse Yeung, and Michael Pang appeared in West Kowloon Law Courts Building to submit their mitigation pleas on Tuesday.
They are among 45 pro-democracy figures convicted of taking part in a “conspiracy to subvert state power” under the Beijing-imposed national security law. The offence revolves around an unofficial primary election in July 2020 designed to shortlist candidates that would help the pro-democracy camp secure a majority in the city’s legislature. The court is hearing mitigation pleas from the defendants in groups.
Senior Counsel Nigel Kat, representing Yuen, argued that the agreement reached by the defendants to veto the budget if they were elected into the legislature was “highly unlikely” to ever have taken place.
Three national security judges presiding over the case earlier found the primary election part of a larger subversion scheme that aimed to indiscriminately veto the government budget, which they said would “create a constitutional crisis for Hong Kong.”
But Kat said the judges could not have been certain the democrats’ plan would have succeeded, adding that Yuen had been disqualified from running in the legislative elections, which were then postponed due to Covid-19.
“The important point here is you may not sentence my client on the basis that their plan would have dire consequences, because there is no finding of such consequences,” Kat said. “It was a remote possibility.”
Judge Andrew Chan questioned Kat’s submission and said legal scholar Benny Tai, who organised the primary election and had advocated for the use of the vetoing power, had believed his plan would succeed.
“How many times has [Tai] been proven wrong?” The lawyer said, adding that it would not be fair to sentence Yuen based on Tai’s belief rather than an objective assessment of the prospective outcome of the scheme.
‘Not a common criminal’
Kat also said that the three-tier sentencing regime under the security law should not apply to the case because the prosecution had chosen to pursue a conspiracy charge.
The security law stipulates three categories of offenders, with “principal offenders” facing up to life in prison. An “active participant” could be sentenced up to 10 years in jail and “other participants” up to three years in jail.
However, Kat argued that a conspiracy conviction should not be subject to the same sentencing regime and the court should follow common law principles in fixing a jail term.
He contended that Yuen’s involvement in the conspiracy had ended following her disqualification on July 30, 2020, and that she had done “very little” harm to national security after Beijing’s security law came into force on June 30 that year.
The charge Yuen faced – that of “seriously interfering in, disrupting, or undermining” the functions of the Hong Kong government – was also less serious compared with other offences under the security law that involved overthrowing China or the use of force, Kat argued.
The lawyer also said Yuen had recently got married in custody and that any further sentence would “damage her rehabilitation.”
“She lost the best of her years,” he said, describing Yuen as an “idealistic young woman.”
Yuen, 30, pleaded guilty to the offence and was remanded in custody after being denied bail in March 2021.
“These are our children; there are our people. What you’ve got here is not common criminals,” he added.
‘Linked with Hong Kong’
Senior Counsel Robert Pang, representing Leung, said that while his client had been an active participant in the scheme, he had violated the law only out of ignorance and not disregard.
However Judge Chan appeared unconvinced, saying that Leung was one of three defendants who had initiated a joint declaration to bind more “radical” candidates.
Pang said the declaration was conceived prior to the enactment of the security law and that Leung had believed in the legality of the scheme.
The lawyer read out part of a mitigation letter penned by Leung, in which the 27-year-old described himself as someone whose fate was “tightly linked with Hong Kong’s [fate].”
Pang added that Leung should be given a one-third discount for his guilty plea ahead of the trial.
Senior Counsel Hectar Pun, for Cheng, said his client had been “misguided by ill-advice” into believing in the legality of the primary election. Cheng, 35, was found guilty after the trial that lasted 118 days.
Pun said Cheng had deleted his social media platforms and pledged not to be involved in politics following his arrest in January 2021, signalling that there was no risk of reoffending.
Pun urged the court to consider Cheng as an “other participant” – the least serious category of offenders under the security law.
Two independent candidates
Chui’s representative, barrister Albert Wong, said Chui was a former district councillor with no political affiliation who had not participated in any events that exerted pressure on other candidates during the primary election.
Chui, 56, pleaded guilty to the offence. Wong highlighted Chui’s public service as a district councillor since 2015 and said Chui had “deeply apologised” for joining the primary election.
Wong asked the court to consider Chui among those of the least serious nature of their offence.
Barrister Cheung Yiu-leung, for Yeung, also said that Yeung was an independent candidate in the unofficial election and that she had never been a radical politician.
Yeung was instead an artist, an animal rights activist, a cultural conservationist, a public servant, and a daughter of a humble family, Cheung said.
But Judge Johnny Chan highlighted a sentence in a mitigation letter penned by Yeung, in which the 37-year-old said she “never had the intention to harm the state,” saying the court could not accept such submission after her guilty verdict.
The court is expected to hear from Michael Pang, the last among this group, when the hearing resumes on Wednesday.
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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