A Hong Kong court has rejected claims that legal scholar Benny Tai’s role in a subversion scheme was limited after Beijing imposed a national security law, as mitigation hearings in the city’s largest case against 47 pro-democracy figures continued.
The former law professor, 59, has pleaded guilty to taking part in a “conspiracy to subvert state power” over his role in an unofficial primary election in July 2020 to shortlist opposition candidates in a bid to win a majority in the city’s legislature. He could be jailed for life.
The court last month found the primary election part of a larger subversion scheme that aimed to indiscriminately veto the government budget, which would “create a constitutional crisis.”
Senior Counsel Stewart Wong, representing Tai, on Wednesday told the court that Tai had stopped playing a leading role in the primary election after the national security law came into force on June 30, 2020.
Wong argued that Tai would neither run in the Legislative Council election nor could he control what others did if they were elected as lawmakers.
“It is unrealistic to say [Tai] would be controlling or directing any of them to do so. They will decide… whether to veto the budget by themselves,” Wong said.
See also: Ex-legal scholar Benny Tai should get 2-year jail term for subversion charge, lawyer says
The lawyer also contended that Tai could not be punished for what he did, including for organising the primary election and for advocating the use of the vetoing power, before the enactment of the security law.
Tai had held an “honest but mistaken belief” that vetoing the government budget did not violate the security law, Wong said, adding that city officials and legal experts were uncertain about the scope of the security law immediately after its passage.
“This is certainly not a court of politics, it’s a court of law, so the only thing your lordship should look at is the legality,” Wong said. “And nothing was illegal before the 1st of July.”
But the three judges, who have been handpicked by the city’s leader to try national security cases, said Tai’s conduct before the security law was relevant to his sentencing due to the continuous nature of his scheme.
Judge Andrew Chan said Tai had hatched the plan of the primary election: “That’s the beginning of a chain reaction, you cannot simply artificially divide the whole thing into two.”
They also rejected Wong’s submission that Tai played “little or no role” after the implementation of the security law, saying Tai had continued to engage with other organisers of the primary election.
That included his co-defendant and former lawmaker Au Nok-hin, who testified for the prosecution, as well as Australian national Gordon Ng, who was found guilty among 14 others after an 118-day trial.
A grey-headed Tai, wearing a black jacket and a white shirt, appeared calm throughout Wednesday’s hearing. Earlier in the day, he grinned and waved at the public gallery as he entered the defendant’s dock.
Wong went on to summarise four letters of mitigation for Tai, including one Tai penned himself; two by Tai’s former colleagues at the University of Hong Kong, legal scholars Albert Chen and Eric Cheung; and another by a reverend named Patrick So.
The lawyer added that Tai had “never advocated violence” in his life, which should be considered as a mitigating factor. Judge Johnny Chan, however, appeared reserved about the submission, saying the scheme had not been concerned about the use of violence.
The court allowed Tai to be excused from the rest of the mitigation hearings, which will run into August, after Wong completed his submission. Tai is expected to next appear in court to receive his sentencing alongside 44 others convicted of the charge.
A ‘noble’ cause
Separately, the court on Wednesday heard a mitigation letter penned by Ng, read out by his lawyer Randy Shek.
“Growing up, I was never too engaged in the world of politics, as I rarely had strong opinions regarding the specifics of policies one way or another,” the 45-year-old wrote. “However, I have always strongly believed in the principles of liberal democracy, and the values of checks and balances in a society.”
“I believe that the holding of fair and regular elections provides the best counter balance against a power potentially becoming tyrannical. It is for these reasons that I support the pro-democracy movement in Hong Kong, as I believe their cause of striving for democracy a noble one,” he continued.
“I considered it my right, and possibly even my duty, to do something to increase the chance of a successful primary election,” he said, adding that he had “done [his] utmost” to ensure the legality of his campaign.
The court also heard submissions from Au’s legal representatives, as well as those representing Andrew Chiu and Ben Chung, both prosecution witnesses and former district councillors. They asked for the court to consider a lesser sentencing for their assistance to the prosecution.
The mitigation hearings will resume next Tuesday, when the court is expected to hear from defendants who stood in the Hong Kong Island constituency of the primary election.
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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