The Hong Kong Alliance in Support of Patriotic Democratic Movements of China, previously deregistered, saw its former vice-chair Chow Hang-tung and two former standing committee members, Tang Ngok-kwan and Tsui Hon-kwong, convicted of refusing to hand over information. They have been granted permission to appeal to the Court of Final Appeal, with the hearing set for January 8, 2025.

Acting Chief Justice Roberto Alexandre Vieira Ribeiro, Permanent Judge Joseph Paul Fok, and Judge Johnson Lam approved the appeal on three legal issues under the National Security Law’s implementation rules. The issues include whether the offense of failing to provide information requires proof that the defendants were indeed agents of foreign or Taiwanese entities, and whether the police’s “notice to provide information” can demand data predating the National Security Law.

Additionally, the Court of Final Appeal allowed an appeal on the grounds that parts of the evidence were obscured due to ‘public interest immunity,’ potentially leading to a significant unfairness in the trial. Senior Counsel Robert Pang demonstrated to the judges the extent of redaction by showing copies of the original trial documents, many of which were heavily blacked out.

Chow sits at the barrister’s bench, nodding and smiling at the audience

Chow Hang-tung, continuing without legal representation and presenting her own arguments in court, alongside Tang Ngok-kwan and Tsui Hon-kwong, who were represented by Senior Counsel Robert Pang and Barrister Esmond Wong respectively. The prosecution team included Deputy Director of Public Prosecutions Jonathan Man Tak-ho, Acting Assistant Director of Public Prosecutions Ivan Cheung Cheuk-kan, and Senior Prosecutor Karen Ng Ka-yuet.

Chow, dressed in a yellow T-shirt and an olive-green jacket, was seated at the barrister’s bench arranged by correctional officers. Throughout her entrance and exit, she acknowledged the audience with nods and smiles. During breaks, she was seen engaging enthusiastically in conversation with her lawyers. Deng Yanhua, the wife of former Hong Kong Alliance chairman Lee Cheuk-yan, was also present in the audience, making a heart-shaped gesture at Chow during a break, to which Chow responded with a radiant smile.

Appellants continue to dispute elements of the charge, citing Public Interest Immunity (PII) concealing evidence as causing injustice.

The case involves the crime of non-submission of data under the “Implementation Rules” of the National Security Law. As the hearing commenced, the Acting Chief Justice, Roberto Alexandre Vieira Ribeiro, first summarized the appellant’s arguments, highlighting five legal issues:

1. For the crime of non-submission of data, whether the prosecution must prove that the defendant is actually a foreign or Taiwanese agent, or merely needs to establish a reasonable suspicion that the defendant is an agent.

Roberto Alexandre Vieira Ribeiro continued, stating that after reviewing the written arguments from both sides, the court is prepared to grant leave to appeal on the first, second, and fifth issues, requesting that the appellants only supplement their arguments on the remaining disputes.

Chow Hang-tung first addressed the substantial and severe injustice caused by the case. Chow stated, “The injustice of this case, precisely why we have persisted in appealing to the very end after serving our sentences, is because the Hong Kong Alliance in Support of Patriotic Democratic Movements of China was arbitrarily labeled as ‘agents’ and thus punished and legally regulated, yet throughout the judicial process, we had no opportunity to challenge this label. To this day, we still do not know of whom we are accused of being agents.”

She argued that as ordinary citizens, they could not anticipate that a law regulating foreign agents could extend to those who are not actually agents; if they could be charged unknowingly, the same could happen to anyone since the law grants the police the power to act without any oversight.

Chow also responded to the prosecution’s claim that as defendants, they could challenge the police’s decision through judicial review. However, she questioned, “Should the court accept a conviction that is clearly incorrect due to procedural technicalities?” This is the question she posed to the court.

2. Whether the “same person principle” ruling, previously applied by the Court of Final Appeal in the case involving Chow Hang-tung’s incitement to gather for the June 4th event, is applicable to this case.

3. Whether the police’s request for documents from the defendants exceeds the scope of “submitting data” defined in the legislation.

4. Whether Schedule Five of the “Implementation Rules” under the National Security Law is not limited by the Personal Data Protection Principles of the Privacy Ordinance.

5. Whether the police can request the defendant to provide documents that existed before the enactment of the National Security Law.

Additionally, the appellants also argued that the trial judge’s approval to redact parts of the evidence using “Public Interest Immunity” (PII) resulted in “substantial and grave injustice” to the case, forming the basis for their appeal.

Roberto Alexandre Vieira Ribeiro indicates a preliminary intention to grant permission on three issues.

Roberto Alexandre Vieira Ribeiro continued, stating that after reading the written arguments from both sides, the court was prepared to grant appeal permission on the first, second, and fifth issues, asking the applicants to only supplement their arguments on the remaining disputes.

Chow Hang Tung first spoke on the substantial and severe injustice caused by the case. She pointed out that the injustice of the case, which had led them to persistently appeal even after serving their sentences, was precisely the issue at hand.

Chow mentioned that the Hong Kong Alliance in Support of Patriotic Democratic Movements of China had been arbitrarily labeled as ‘agents,’ leading to their punishment and legal control, without any opportunity to challenge this label throughout the judicial process. ‘Even now, we still do not know whom we are accused of being agents for,’ she stated.

She noted that as ordinary citizens, they could not have anticipated a law regulating foreign agents extending to people who are not actually agents. This situation could happen to anyone since the law gives the police power without any oversight.

Chow responded to the prosecution’s written claim that they, as defendants, could challenge the police’s decisions through judicial review, but she questioned, ‘Should the court accept a conviction that is clearly wrong due to procedural technicalities?’ Chow stated that this is the question she posed to the court.

Robert Pang Yiu-hung displays blacked-out documents before the judges’ bench 

The senior barrister argued that the defendants have claimed from the first day that the trial was unjust because the court made decisions based on evidence that the defendants could not challenge.

However, Justice Johnson Lam raised questions, pointing out that the original trial had confirmed that its decisions were not based on the redacted content and asked how this led to injustice. He noted that professional judges understand to consider only admissible evidence and are not influenced by inadmissible evidence.

Pang responded, stating, “What has been seen cannot be unseen,” implying it is difficult to ensure that the original trial was not influenced by the redacted content. He argued that this case differs from typical situations where the court handles the admissibility of evidence because in those situations, the defense at least gets to see the disputed evidence and can respond. However, in this case, the defense had no such opportunity.

Pang then raised a copy of the original trial’s documentary evidence, showing the three judges the extensive amount of content that had been blacked out. Pang pointed out that the prosecution accused the Hong Kong Alliance in Support of Patriotic Democratic Movements of China of being agents for certain organizations because those organizations had provided funding. However, details such as which organizations, the amount of money, and when the payments were made were all redacted, “If the defendants knew, they might easily explain it.”

Department of Justice: Disagrees That Concealed Evidence Leads to Unfair Trial

Representing the Department of Justice, Jonathan Man Tak-ho argued in response to the applicant’s suggestion that evidence and the trial should be handled by two separate tribunals. He disagreed with the claim that not seeing the redacted Public Interest Immunity (PII) content leads to an unfair trial.

Man contended that even if a second tribunal existed, separate from the original trial to handle evidence, the defense would still not have access to content protected by Public Interest Immunity, directly pointing out this as an imperfection of the system.

Roberto Alexandre Vieira Ribeiro: Legality Must Not Be Overlooked in the Name of National Security

Jonathan Man Tak-ho further stated that the original intent of the National Security Law was to effectively prevent, stop, and punish actions endangering national security, which should be the primary consideration when courts interpret the “implementation rules”. He also mentioned that the most effective way to safeguard national security would be through police actions that are “decisive, timely, and resolute”.

However, Roberto Alexandre Vieira Ribeiro interrupted Man twice, asserting that any actions taken by authorities must be lawful, not merely punitive or for efficiency’s sake, emphasizing that “effective national security enforcement must not disregard legal requirements”.

Trial Set for January 8 Next Year; Three Individuals Have Completed Their Sentences

After a brief recess, the three judges decided to grant an appeal on the first, second, and fifth legal disputes, as well as on whether the covering of evidence under the “Public Interest Immunity” has caused an unfair trial. The formal hearing is postponed to January 8, 2025, with reasons for granting permission to be issued later.

This case marks the first conviction and appeal under the National Security Law’s implementation rules. In March 2023, Chow Hang-tung, Tang Ngok-kwan, and Tsui Hon-kwong were found guilty of failing to comply with a “Data Handover Notice” under the National Security Law’s rules by the then-presiding magistrate, Peter Law Tak-chuen. Each was sentenced to four and a half months in prison. Dissatisfied, they appealed, but their appeals were rejected by High Court Judge Anna Lai Yuen-kee on March 14, 2024, who also refused to issue a certificate for a final appeal. Consequently, they applied directly to the Court of Final Appeal for permission to appeal.

All three have completed their sentences. Tang Ngok-kwan and Tsui Hon-kwong were initially denied bail and detained for 42 days from their first appearance in court in September 2021. They were immediately imprisoned after their appeal failed. Due to amendments to Article 23, they did not receive a one-third reduction for good behavior and were released on June 13 after serving the full four and a half months. Chow is currently detained in relation to another case involving the Hong Kong Alliance in Support of Patriotic Democratic Movements of China charged with inciting subversion.

For a comprehensive review of the 16-day trial of the Hong Kong Alliance case, see related reports.

The Witness