Hong Kong 47: Democrats’ poor performance in ‘subversive’ primaries showed level of involvement, lawyers say (2024)

Legal representatives of activists convicted in a landmark national security case have argued that their clients’ poor performance in a primary election reflected their degree of participation in the plan. Judges have ruled that the democratic primaries could have caused a “constitutional crisis.”

Appearing before a panel of judges hand-picked to preside over national security cases, Senior Counsel Gladys Li on Wednesday said that ex-unionist Carol Ng was “genuinely remorseful” and had only wanted to improve labour conditions for Hong Kong’s workers.

Ng, 53, was among 45 defendants convicted ofconspiring to commit subversionover an unofficial primary poll held in July 2020, which aimed to help the opposition camp win a majority in the city’s legislature.

It was said that the democrats had intended to abuse their powers to indiscriminately veto the government budget, which – during the trial – a panel of three judges ruled would have plunged Hong Kong into a “constitutional crisis.”

Subversion of state power is an offence under the Beijing-imposed national security law, which was inserted directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest.

Carol Ng

“In any event,” Li said on Wednesday, the highest sentencing band laid out by the subversion offence under the Beijing-imposed security law would not be applicable in Ng’s case.

See also: Hong Kong 47: Ex-district councillor says ‘no remorse’ over joining primaries at centre of national security case

Ng said in her own mitigation letter submitted to the court that she joined the primaries purely to “afford our society more satisfied workers so that our society can operate better.” It was never her aim to subvert state power, only to improve labour conditions for workers, she said.

But judge Johnny Chan said the court could not accept that Ng had no intention to break the law, only that she was not a principal offender.

Li also asked the court to consider Ng’s track record as a labour unionist, that she formed the British Airways Hong Kong Cabin Crews Union before joining the now-defunct Hong Kong Confederation of Trade Unions as chairperson.

Serving others and having others in mind was “just part of her character,” Li said, adding that Ng believed taking part in the conspiracy was the “worst decision of her life.”

Li also asked the court to consider that Ng was convicted for conspiracy to subvert state power and not the substantive offence of subversion itself, and that the conspiracy involved no force or threat of force.

The conspiracy was conducted in such a way that “enabled the government to take whatever measures to nip it in the bud,” adding that it “had the seeds of its own destruction.” She added: “Some would say it was a pipe dream.”

The senior counsel also pointed to Ng’s loss in the primaries. “Her performance at the forum for New Territories West was dismal — she scarcely got a chance to speak because she was not quick enough on the buzzer.”

Li submitted that Ng was not a principal offender and asked the judges to consider the unionist as an “active” or “other” participant in the conspiracy.

Roy Tam

Representing ex-district councillor Roy Tam, barrister David Ma asked the court to consider Tam a lower-level “other” participant in the conspiracy and, if not, to place him at the lower end of the “active participant” band.

Like Ng, Tam was an “also-ran” candidate, Ma told the court, adding that he came last in the primaries, only receiving half the number of votes of the candidate who finished above him.

Addressing doubts from the judges, Ma said he was not arguing that fewer votes would necessarily mean a shorter sentence. But he asked the court to consider that there was a “spectrum of activeness” across the defendants who had participated in the primaries, and that Tam fell on the lower end, so far as the “active” sentencing band was concerned.

Citing a mitigation letter from former observatory chief Lam Chiu-ying acknowledging Tam’s efforts on environmental issues, Ma asked the court to accept that Tam’s goal in joining the primaries was to introduce a “greener voice” to the legislature.

Subverting state power was not his primary goal, Ma added.

Ma also said the ex-councillor had not been idle while incarcerated, and had studied courses on building management. That was an indication that he would not go back to politics, Ma said, adding that Tam realised that going back to environmental work would involve a certain degree of politics.

Ricky Or

Former District Councillor Ricky Or’s participation in the conspiracy was “extremely limited,” barrister Richard Yip argued on Wednesday, adding that he had limited influence over the general public.

Judge Alex Lee said in response that Or produced campaign materials and had hired a campaign manager, casting doubt over the idea that the number of votes received by a defendant reflected the extent of their culpability. Or was among those who had signed a declaration to indiscriminately veto the budget, said judge Johnny Chan.

Yip argued that – while others actively campaigned on the streets – Or was just “sitting on the sidelines,” and had simply acknowledged the primaries were “something to be done” to get into the legislature.

The barrister went on to say that Or had an “unblemished record” and had engaged in public service for more than 20 years as a District Councillor from 2003 to 2011, and again from 2019 to 2021. Yip also noted that Or’s public service record was recognised by the government as he had received the Chief Executive’s Commendation for Community Service in 2008.

Or was by no means a radical, Yip said, adding that it was unfortunate that he was part of the conspiracy.

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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