How a primary election led to activist convictions in Hong Kong’s biggest national security case

HONG KONG (AP) — Verdicts were handed down Thursday in Hong Kong’s largest national security case to date, involving some of the city’s best-known pro-democracy activists and coming more than three years after the defendants’ arrests.

In 2021, 47 pro-democracy activists were charged with conspiracy to commit subversion under the sweeping, Beijing-imposed national security law for their involvement in an unofficial primary election. The mass prosecution crushed the city’s once-thriving political activism and dimmed hopes of a more democratic Hong Kong.

Fourteen of the 47 defendants were convicted Thursday and two others were acquitted. The convicted face up to life in prison.

Critics argue the law has drastically eroded the freedoms that are vital to maintaining the city’s status as a global financial hub. “It is a trial of the pro-democracy movement in Hong Kong,” said Eric Lai, a research fellow at Georgetown Center for Asian Law.

What to know about the security case:

WHO ARE THE 47 ACTIVISTS?

Many of the city’s most prominent democracy advocates are among the 47 activists, whose ages range from their 20s to 60s.

It includes legal scholar Benny Tai, about a dozen former pro-democracy lawmakers such as Claudia Mo and Alvin Yeung, and activists such as Joshua Wong and Lester Shum. Many have been detained without bail for more than three years.

The trial for 16 of the defendants — including former lawmakers Leung Kwok-hung and Raymond Chan and journalist-turned-activist Gwyneth Ho — began in February 2023, after they pleaded not guilty.

Thirty-one others, including Tai, Mo, Yeung, Wong and Shum, have pleaded guilty. They have a better chance of shorter prison terms and will be sentenced at a later date.

WHAT WAS THE PRIMARY ELECTION?

Riding on a huge wave of anti-government protests in 2019, the pro-democracy camp was likely to make gains in the 2020 legislative election. The primary was meant to shortlist pro-democracy candidates who would then run in the official election.

The camp hoped to secure a majority in the legislature to press for protesters’ demands, which included greater police accountability and democratic elections for the city’s leaders.

In March 2020, Tai, a key organizer of the primary, said that obtaining a controlling majority in the legislature, which is typically dominated by the pro-Beijing camp, could be “a constitutional weapon with great destructive power.”

Ahead of the election, the government warned that the vote might violate the national security law. Despite this, the July 2020 pro-democracy primary was held and attracted an unexpectedly high turnout of 610,000 voters — over 13% of the city’s registered electorate.

Beijing quickly criticized the vote as a challenge to the national security law, and in January 2021, over 50 activists were arrested under the law and 47 of them were later charged.

HOW DID THE TWO SIDES ARGUE THEIR CASES?

The prosecutors alleged the defendants had agreed to indiscriminately veto government budgets to compel the city leader to dissolve the legislature and force the leader to step down.

The prosecution said the purpose of the alleged conspiracy was to subvert state power, pointing to how Tai described securing the majority as a “constitutional weapon” and referred to newspaper articles he wrote about “mutual destruction.” In one of the articles, Tai suggested that repeatedly blocking government budgets could grind governmental functions to a halt, they said.

The prosecutors said 33 of the activists had endorsed a joint declaration that pledged they would use their legislative powers, including vetoing budgets, to compel the city leader to address the protesters’ demands.

Four of the defendants who pleaded guilty also testified for the prosecution.

The defense argued that “unlawful means” to subvert state power should entail physical coercion or criminal conduct. One of the lawyers, Randy Shek, said his clients were only seeking to push for democratic elections for residents to pick the city’s leader and lawmakers.

“What they did was simply seeking (to) hold power to account, and that could not be subversion,” he said.

Prosecutor Jonathan Man argued that unlawful means didn’t necessarily imply physical violence. He said that in the 21st century, when it’s convenient to communicate with the public via social media, it’s also easy to manipulate those channels “to endanger national security.”

WHAT DID THE JUDGES SAY?

The judges, who were approved by the government to oversee the case, convicted 14 of the 16 defendants who pleaded not guilty, including Leung, Chan and Ho. Two former district councillors, Lawrence Lau and Lee Yue-shun, were acquitted.

According to the judgement, the court found the 14 convicted had the intention to subvert the state’s power, but it could not determine the same for Lau and Lee.

“The scheme, if carried out in accordance with the intentions of the parties as alleged, would necessarily amount to … undermining the performance of duties and functions in accordance with the law by the government,” they said.

They added “unlawful means” are not limited only to criminal acts, and that it was not necessary for the prosecution to prove the accused knew that the means to be used were “unlawful.”

WHAT IS THE VERDICT’S SIGNIFICANCE?

Experts say the verdict is a litmus test of how the national security law will be used against political opponents and activism.

Since the law was enacted, the Hong Kong government has insisted the city’s judicial independence is being protected. But Thomas Kellogg, executive director of Georgetown University’s Center for Asian Law, said that while the acquittal of two activists — a first under the national security law — was welcome, it is clear that the courts continue to follow the government’s line in all national security cases.

The verdict also made clear that judicial independence in Hong Kong is “very much in doubt,” at least in national security cases, he said.

“We simply haven’t seen any court do anything but uphold the government’s core contentions, in case after case,” he said.

Eric Lai, a research fellow with the same center, said bargaining and other pressure tactics of a legislature against an executive are always constitutional in liberal democracies. But the verdict in Hong Kong supports the government’s narrative that using veto power over budgets as a bargaining tactic would amount to criminal activity, he said. That sends a clear message that the courts place national security imperatives over democratic principles, he said.

WHAT’S NEXT?

The court has tentatively scheduled a hearing on June 25 for convicted defendants to ask for a more lenient sentence.

Following that, the judges will deliver sentences to those convicted.

Kellogg said several of the top activists among the 47 accused could receive sentences of 10 years or more.

“Many among the 47 have missed birthdays and graduations of sons and daughters, and also even the deaths of elderly family members. It’s important not to overlook the very real costs involved here,” he said.

After the verdict, Steve Li, chief superintendent of the police national security department, said an investigation was still ongoing for the case concerning eight other people who were arrested with the 47 activists in 2021. If police have enough evidence, they will discuss with the department of justice whether to charge them, he said.

Kanis Leung, The Associated Press