‘Nobody knew what they were doing was illegal.’ Trial of Hong Kong 47 concludes in legal disharmony

The barristers in Court 3 at West Kowloon Magistrates Court wore wigs and gowns, the proceedings were in English and the arguments drew on precedents in common law. The defendants sat behind glass at the back of the court, scanning the public gallery for their friends and relatives, two rows of court reporters typed and scribbled throughout.

But the three, red-robed judges heard the case without a jury and citations of Bennion on Statutory Interpretation were interspersed with references to authorities from the Chinese mainland. The trial that ended on Monday after 118 days was the biggest so far under the National Security Law (NSL) imposed on Hong Kong by Beijing in 2020 in response to pro-democracy demonstrations the previous year.

The defendants, known as the Hong Kong 47, are charged under Article 22 of the of NSL of “conspiracy to subvert state power”, an offence that can carry a life sentence. Thirty-one have already pleaded guilty and only the 16 who pleaded not guilty were in court on Monday for the closing arguments.

The 47 include former politicians, academics, journalists and other pro-democracy activists who organised primaries in July 2020 to select candidates for Legislative Council elections the following September. The plan, conceived by legal academic Benny Tai, was to choose the strongest slate of candidates in order to win a majority of more than 35 seats.

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They would use that majority to veto the budget unless the chief executive, or head of government, agreed to five demands of the pro-democracy demonstrators. These included: withdrawing a proposed extradition bill; an independent investigation into police conduct during the demonstrations; retracting the characterisation of the protests as riots; an amnesty for arrested protesters; and universal suffrage for electing the chief executive and legislative council.

“What the prosecution has alleged would not amount to subversion in any other common law jurisdiction. It would be considered normal politics,” defence barrister Trevor Beel told the court.

Article 22 of the NSL says that anyone who organises, plans, commits or participates in certain acts “by force, or threat of force or other unlawful means with a view to subverting the state power” is guilty of an offence. The prosecution argues that the defendants conspired to subvert the state power by indiscriminately vetoing the budget, paralysing the government and triggering a constitutional crisis.

Lead prosecution barrister Jonathan Man said it did not matter if the defendants had no intention of using force or the threat of force. Even if no violence was involved and they believed their actions were legal, their scheme amounted to unlawful means that would endanger national security.

Man told the court last week that the NSL was meant to punish, prevent and suppress anything that endangered national security.

“It was meant to be a strong law. That’s why we should interpret it in a wide way, instead of a very narrow interpretation,” he said.

Steven Kwan, representing former district councillor Lee Yue-shun, responded on Monday on behalf of most of the defendants to Man’s arguments. He said the phrase “by force, or threat of force or other unlawful means” meant that a defendant had to use or threaten to use violence to be found guilty of subversion under Article 22 of the NSL.

“These words must be read together with the act of subversion,” he said.

Kwan invoked the common law principle of ejusdem generis that says that general words that follow specific words should be interpreted as referring to things of the same class as the specific ones. He cited a couple of common law examples but Mr Justice Andrew Chan asked if they were really applicable.

“This NSL was drafted up in the north. What makes you think that applies a common law principle?” he said.

The question captured the contradiction at the centre of the trial, which is using a common law court to interpret and apply a law drafted in Beijing. Although the case was conducted in English, the judge pointed out that the original text of the NSL is in Chinese and the Chinese original takes precedence over the English translation.

Of the 47 defendants, 35 have been imprisoned on remand for more than two years and nine months because the NSL has a presumption against bail. The three judges were selected by Hong Kong’s chief executive John Lee and Beijing can move cases to the mainland if it chooses.

But in the courtroom on Monday, common law rules applied with the burden of proof on the prosecution and references to US supreme court judgements and other case law. When one of the judges said that Kwan’s interpretation implied that there was a legal loophole in the NSL, the barrister acknowledged that there may be a lacuna in the law.

“It is not the duty of the court to fill a lacuna. To do so is to risk an abuse of judicial power,” he said.

Beel gave the final submission on Monday on behalf of Gwyneth Ho, who reported on the 2019 demonstrations for now-defunct Stand News before becoming a candidate in the primaries. He said it went against the common law tradition for a law to be so obscure that the defendants could not know if they were in breach of it.

“You should be in a position to find out that what you’re doing is against the law,” he said.

“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 will take three or four months before delivering their verdict, during which time most of the 47 defendants will remain behind bars. And the 31 who have entered guilty pleas will not hear what their sentence is until after the verdict on the other 16.

When the defendants first appeared in court in March 2021, more than 1000 supporters gathered outside, chanting pro-democracy slogans. On Monday there was only one: 67-year-old activist Alexandra Wong, known as Grandmother Wong, waving a giant union jack and holding a sign saying “Free the 47, free them all.”