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June 25, 2024

The Witness: Hong Kong 47 case pleadings – Those Accused of Organizing | Benny Tai’s lawyer argues the minimum sentencing does not apply and proposes 3 years imprisonment as the starting point for sentencing

In the case where 47 pro-democracy figures were charged with ‘conspiracy to subvert state power,’ 45 were found guilty. The sentencing phase began on Tuesday (25th), starting with the 5 individuals identified as organizers. This process is expected to take 3 days and includes Benny Tai, Au Nok-hun, Andrew Chiu, Ben Chung, and Gordon Ng Ching-hang, who was convicted after trial. Many people waited outside the court to attend and express their support (see other articles).

The prosecution argued that the minimum sentencing provisions of the National Security Law apply, and also suggested that sentencing should consider mainland Chinese law, which led to the judges questioning if directly applying mainland law was a ‘backdoor’ around the differences in laws between mainland China and Hong Kong. The judges also repeatedly inquired about the defendants’ roles and positions, with the prosecution stating that answering was ‘difficult,’ eventually claiming that leaders should be considered principal offenders. The prosecution also agreed that the ‘crime reporting’ sentence reduction provision of the National Security Law applies to Au Nok-hun and Andrew Chiu. 

The defense began its argument with Benny Tai’s team. His senior counsel, Stewart K. M. Wong, argued that the case was a conspiracy conviction, not a National Security Law offense, and thus the lower limits of sentencing for subversion did not apply. He also advocated that the starting point for Tai’s sentencing should be 3 years, reduced to 2 years imprisonment considering an early guilty plea, further arguing that Tai was not a ‘principal offender.’ Wong will continue his argument on Wednesday.

The prosecution agreed that the degree of involvement should be considered in sentencing. 

The Deputy Director of Public Prosecutions, Jonathan Man Tak-ho, began his argument, stating that according to Article 22 of the National Security Law on subversion and Section 159C of the local ‘Crimes Ordinance’ (related to conspiracy), the legislated intent suggests that the specified lower limits of sentencing for subversion should apply to this case.

According to the subversion law, ‘principal offenders or persons who commit an offence of a grave nature’ face a sentence of 10 years to life imprisonment; ‘active participants’ face 3 to 10 years; and ‘other participants’ face up to 3 years.

Judge Alex Lee Wan-tang asked the prosecution if, considering the case involves conspiracy, all defendants should be sentenced at the same level? Man responded that it is necessary to consider the different categories specified in Article 22.

Lee further inquired whether, even if the defendants were charged under the National Security Law, their sentences should vary based on their degree of involvement. Man agreed, stating that it is necessary to examine each individual’s role in the case.

Lee also questioned the definition of ‘principal offenders’ in this case, pointing out that only the legislators who made statements and those responsible for vetoing budget bills were ‘principal offenders’. Lee then asked the prosecution’s stance. Man responded that it is unacceptable not to consider the organizers as ‘principal offenders’, directly stating that such arguments defy common sense.”

Prosecution cites interpretation of the Criminal Law of the People’s Republic of China and denies ‘backdoor’ approach

Man then cited the Criminal Law of the People’s Republic of China, specifically Article 105, indicating similarities with the subversion crime involved in the case.

Alex Lee Wan-tang then mentioned the ‘Liu Sai-yu case,’ which involved the exclusion of mainland legal statutes, and questioned whether the prosecution’s approach could be considered ‘backdoor’ tactics. Jonathan Man Tak-ho replied that he does not consider it a ‘backdoor’ approach, reiterating the need to examine the legislative intent and noting that both use the same terminology and legislative framework. Lee further questioned the appropriateness of referring to mainland legal content, to which Man believed the court has the right to refer.

Lee also raised concerns about both statutes concerning national security, and the integration and compatibility of the National Security Law with local laws, pointing out that the security of the same country is involved. He queried whether it would be odd if one penalty is accepted in the mainland but another in Hong Kong. Man reaffirmed his stance that it is necessary to refer to mainland law.”

The judges repeatedly question the prosecution about their stance on the roles of the defendants. 

Jonathan Man Tak-ho, the Deputy Director for Public Prosecutions, made initial remarks during which Judge Andrew Chan Hing-wai asked Man which defendant he considered a ‘principal offender’, which were ‘seriously involved and actively participating’, and who were ‘other participants’. Chan indicated that the prosecution did not need to respond immediately, stating that the court simply wanted to hear the prosecution’s perspective.

Man immediately said that it was a difficult question for the prosecution to answer. Andrew Chan Hing-wai responded, ‘Of course I ask difficult questions!’ and mentioned that he would give the prosecution time to prepare. Upon hearing this, Benny Tai and Andrew Chiu briefly smiled in the dock.

Man reiterated that answering would put the prosecution in a difficult position. Andrew Chan Hing-wai pressed for a reason, clarifying that he was not asking which defendant belonged to which category, as the judges would consider all factors for the final sentencing; he also gave an example asking if the defense for Benny Tai argued that he was an ‘other participant’, would the prosecution accept this? Man again emphasized the difficulty in giving a direct answer.

Chan persisted, ‘Why?’ He then drew a parallel with a drug trafficking case where a lawyer argued the defendant was only responsible for delivery, but the prosecution insisted the defendant was the mastermind, questioning how this was different from the current situation and stating the prosecution must surely have a stance.

Under further questioning, Man stated that a leader should be considered a ‘principal offender’. Andrew Chan Hing-wai also noted that if the sentencing categorized Tai as ‘other participant’, the prosecution would surely appeal. This remark made everyone laugh, including Tai.

The prosecution agreed that Au Nok-hin and Andrew Chiu would testify, making the ‘crime reporting’ provision applicable 

Jonathan Man reiterated the difficulty in specifying which classification each defendant belonged to, but noted that each classification has a minimum penalty, and the factors to be considered for each must be presented to the court.

First, it must be determined whether a defendant is a ‘principal offender,’ including their involvement in organizing and directing the entire plan, their degree of participation, and actual impact. For those ‘actively participating,’ the degree of their active involvement and eagerness must be considered; the rest are categorized as ‘other participants.’ Man continued, explaining that after considering the three levels of penalties, the next step is to determine the starting point for sentencing, and finally, whether there are any aggravating or mitigating factors.

Man also mentioned mitigating factors including Article 33(3) of the National Security Law: ‘ reporting on the offense committed by other person, which is verified to be true, or provides material information which assists in solving other criminal case,’ specifying that this article can be divided into ‘reporting’ or ‘providing significant clues.’ He believes the first part, ‘reporting,’ applies in this case.

Alex Lee Wan-tang asked if the accomplice witnesses providing information for the case were applicable under this. The prosecution agreed it applies if it assists the court. Lee further asked if this applies to Au Nok-hin and Andrew Chiu.

The prosecution confirmed, stating their agreement for the two to testify as accomplice witnesses, with Article 33(3) of the National Security Law applicable. At this time, Au Nok-hin looked forward, scratching his head; Andrew Chiu also looked forward, showing no reaction.

Lee then further inquired, noting that ‘reporting’ others’ criminal actions translates to ‘report,’ but in this case, the defendants were testifying in court. Man replied, ‘Reporting is a general term,’ considering providing information to the police and testifying in court as forms of ‘reporting.’

Benny Tai’s team advocated for a starting sentencing point of 3 years imprisonment. 

After the prosecution finished their statement and oral responses, the defense began their mitigation plea, started by Benny Tai’s senior counsel, Stewart K. M. Wong.

He argued that the starting point for Tai’s sentence should be 3 years, which could be reduced to 2 years after considering factors such as an early guilty plea. Wong continued, stating that after the judges deliver the reasons for the decision, some might find the proposal of a 2-year sentence ‘ambitious or even audacious,’ but it is supported by legal principles. Upon hearing this, co-defendants Winnie Yu Wai-ming, Carol Ng Man-yee, and Ventus Lau Wing-hong laughed.

When Wong was about to continue discussing Tai’s personal circumstances, Judge Johnny Chan Jong-herng interrupted, pointing out that Tai was not a first-time offender. Wong agreed that Tai had previous convictions, but argued that the case was convicted under Section 159C of the ‘Crimes Ordinance’ for conspiracy, not under the National Security Law, so the sentencing principles should be based on Hong Kong law; the sentencing under the National Security Law could be referred to, but is limited by Section 159C, and the minimum sentencing levels for subversion do not apply.

Stewart K. M. Wong: conspiracy charges are not subject to minimum sentencing

Stewart K. M. Wong continued to explain the nature of the conspiracy charge, stating that the prosecution did not charge the defendants with the ‘substantive offense’ (actual commission of the crime), but with ‘conspiracy’ (an uncompleted crime; typically, the penalty is the same as the maximum penalty for the substantive offense), which was a prosecutorial choice.

Wong cited the crime of murder as an example, noting that if convicted, the sentence is life imprisonment, but for ‘conspiracy to murder,’ the court has the discretion to sentence without being affected by minimum sentencing limits.

Wong also discussed the legislative intent and terminology of conspiracy, noting that before 1983, preliminary offenses like conspiracy had a maximum sentence of 7 years, and there was no mention of minimum sentences. Subsequently, there was societal debate when the maximum sentence for conspiracy to commit murder was only 7 years; by 1996, conspiracy was incorporated into the statute as the current Section 159C, aligning the sentencing for conspiracy with the maximum penalties for substantive offenses, including life imprisonment for conspiracy to murder. Thus, the legislative intent was to raise the maximum penalty, not concerning the minimum.

Wong then stated that Section 159C came into effect in 1996, questioning how the prosecution could argue that according to legislative intent, if severe crimes in the future have minimum sentencing limits, these should be adopted? Regarding Article 109 of the ‘National Security Law,’ which addresses penalties for ‘conspiracy to commit offenses prescribed by the National Security Law,’ Wong noted that it mentions conspiracy is subject to the penalties under the National Security Law, but this regulation took effect in March 2024 and should not have retroactive force.

Wong: Benny Tai not ‘principal offender’

Wong argued in his submission that using constitutional powers to achieve outcomes was legal until it became illegal on July 1, 2020; the crime lies in Benny Tai not ceasing his activities after the implementation of the National Security Law. Judge AndrewChan Hing-wai interrupted, pointing out that it was not merely a failure to stop, but a continuation of activities. Wong then stated that when sentencing, Tai’s role after July 1 must be considered.

Judge Johnny Chan Jong-herng interrupted, noting that Wong categorized Tai as an ‘other participant,’ and then asked Wong who he considered to be the ‘principal offenders’ and ‘active participants.’ At this, Andrew Chan Hing-wai laughed. Wong responded that the illegal means in the case were not the primaries, but the indiscriminate vetoing, questioning how those who could not veto could be considered ‘principal offenders’?

Benny Tai nods and smiles to the public gallery. His wife attends the court to support him

Benny Tai and four others arrived at the court around 10 AM and were seated in three rows in the defendants’ dock, separated by 10 correctional officers (see image below). Benny Tai, who was seated in the middle row, had three correctional officers positioned to his left, right, and behind him. Gordon Ng Ching-hang, who was found guilty after trial, was seated in the back row in the right corner, flanked by a correctional officer on each side.

Three defendants, Au Nok-hin, Andrew Chiu, and Ben Chung Kam-lun, who pleaded guilty and testified as accomplice witnesses, were arranged in three rows at one end of the defendants’ dock, each with a correctional officer by their side.

Benny Tai, who has not made a public appearance in a long time, nodded and smiled towards the public gallery, and his wife was also present in court. Tai wore a black suit jacket and a white T-shirt, and had noticeably more white hair.

Au Nok-hin and Andrew Chiu were seated in the back and middle rows respectively; Chiu wore an Adidas tracksuit jacket, while Au wore a blue shirt and black sunglasses, looking around. Ben Chung was seated in the front row, wearing a suit jacket and a mask, also looking around.

Gordon Ng, seated in another corner of the back row, wore a black jacket and a white collared shirt. He wore headphones, nodded, and smiled at the audience, communicating through lip movements and facial expressions.

Co-defendants in the same case attend in the extended court

In addition, co-defendants of the same case were arranged to attend in two extended courts. Winnie Yu Wai-ming, Carol Ng Man-yee, Tiffany Yuen Ka-wai, Gwyneth Ho Kwai-lam, Owen Chow Ka-shing, Ventus Lau Wing-hong, and Roy Tam Hoi-pong were in one of them; Sze Tak-loy, Tat Cheng Tat-hung, Michael Pang Cheuk-kei, Ng Kin-wai, and Frankie Fung Tat-chun were in another.

Some of the defendants’ legal representatives also attended in the extended courts, including senior counsel Gladys Veronica Li, barristers Margaret Ng Ngoi-yee, Kevin Chan Sai-kit, and Money Lo Man-yee. Gwyneth Ho Kwai-la, upon entering the extended court and seeing the lawyers’ bench, momentarily mouthed “wow”. After sitting down, Carol Ng Man-yee leaned forward to smile at the audience and waved and chatted with Margaret Ng Ngoi-yee. Owen Chow Ka-shing, upon seeing his representative Kevin Chan Sai-kit, broke into a toothy smile and waved vigorously. Ventus Lau Wing-hong, wearing a red polo shirt and a brown jacket, appeared thinner than before.

The 45 convicted defendants in this case will be handled in six batches for their mitigation pleas (see the schedule below), starting with the five individuals identified as organizers. “The Witness” has compiled the judges’ reasoning and court testimony relevant to the roles and actions of these five individuals (see another article).

The Witness

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