June 27, 2024

In the “35+” primary election case of the pro-democracy camp, 45 people pleaded guilty or were found guilty by trial of conspiracy to subvert state power, including former associate professor of law at HKU Benny Tai and former legislator Au Nok-hin, who continued their plea for mitigation yesterday. The defense argued that Benny Tai’s words and actions before the National Security Law took effect were irrelevant to sentencing, but the judges rejected this. Additionally, Au Nok-hin and Andrew Chiu Ka-yin, serving as prosecution witnesses, sought sentence reductions through their barristers, with Au proposing a reduction of up to 60% and Chiu up to 55%. The judges acknowledged that Au’s testimony assisted the prosecution’s case and contributed to establishing the prosecution’s narrative, but it did not reach the level of a “supergrass”

The five defendants, Benny Tai (59 years old), Au Nok-hin (37 years old), Andrew Chiu (38 years old), Ben Chung Kam-lun (35 years old), and Gordon Ng Ching-hang (45 years old), were brought to the temporary High Court in West Kowloon for the hearing yesterday. The mitigation process for the five individuals, originally scheduled for three days, concluded one day early yesterday.

The judges rejected the claim that Benny Tai’s actions before the implementation of the National Security Law were not relevant to the charges

Representing Benny Tai, senior barrister Stewart K. M. Wong pleaded that the primaries were not illegal before that date, and the court should not consider Tai’s actions before July 1. Wong also mentioned that Tai posted on July 16 of the same year announcing a ‘rest’ from his leadership role. However, the judges ruled yesterday that Tai’s actions before July 1 were not irrelevant to his culpability and also rejected the notion that Tai’s involvement after July 1 was minor (see another article).

Au Nok-hin, along with Andrew Chiu Ka-yin and Ben Chung Kam-lun, served as ‘accomplice witnesses’ for the prosecution, with the extent of their sentence reduction being a focal point of the hearing. Representing Au Nok-hin, barrister Valerie Chan Mo-yin stated that after the primaries were condemned by the Liaison Office, Au tried to dialogue with the authorities, not only withdrawing from the primaries himself but also contacting Benny Tai and Andrew Chiu to discuss withdrawing, aligning with the ‘voluntary abandonment of crime’ mitigation factor under Article 33 of the National Security Law. Additionally, Au’s testimony aided the prosecution’s case, meeting the ‘reporting others’ crimes’ criteria under Article 33.

Originally proposing a halving of the sentence, Au makes gestures indicating that no more was necessary.

Judges Andrew Chan Hing-wai and Alex Lee Wan-tang asked if the defense’s written request for Au Nok-hin’s sentence to be reduced by half would propose more than half in court. At this point, Au Nok-hin made a cross gesture with his hands, indicating no further reduction was necessary. Judge Lee cited a case stating that only a “supergrass” who testifies in court could receive a reduction close to two-thirds, or 66%. After discussion, Valerie Chan Mo-yin confirmed that Au would not be considered a “supergrass,” and under Article 33 of the National Security Law and common law principles, suggested a reduction of 50% to 60% for Au (see table).

The “quality of evidence” provided by Au Nok-hin was briefly discussed in court. Judge Chan mentioned a drug case where a defendant provided information to the police which ultimately proved useless. Judge Lee believed that the evidence showed Au Nok-hin did not reach the “supergrass” level, but his testimony was “useful” and helped substantiate the charges, stating, “Without his testimony, the prosecution couldn’t even have filed the case.” Additionally, ValerieChan Mok-yin claimed that Ben Chung Kam-lun provided all feasible assistance to the prosecution, also requesting a reduction of half.

Andrew Chiu’s request for a 66% reduction was questioned by the court. Representing Chiu, barrister Summly Lee claimed that Chiu had earlier in written submissions requested a 66% reduction, saying Chiu “did his best” to provide information to law enforcement, meeting the “supergrass” level. Judge Lee questioned, noting that a “supergrass” is not only a prosecution witness but also bears personal safety risks, after which Summly Lee revised the recommendation to a reduction of 40% to 55%.

Summly Lee stated that as the then convenor of the Democratic Dynamics, Chiu was only invited to prepare for the primaries, and his involvement in the crime was brief, showing deep reflection. Judge Johnny Chan Jong-herng asked what the relevance was of the trauma report from Chiu’s injury during the November 2019 Taikoo Shing conflict to the sentencing. Summly Lee responded that Chiu, being a moderate democrat, had suffered both physical and psychological trauma.