The trial of a high-profile case concerning a “primary election” held in July 2020 may persuade more moderate Hong Kong residents to reconsider the unprecedented threat posed by the “10-Step Plan for Mutual Destruction” (10-step plan) proposed by legal scholar Benny Tai Yiu-ting and stop harboring favorable perceptions of the 47 individuals who are charged with conspiracy to commit an offense under Article 22 of the National Security Law for Hong Kong (NSL). For fear of posing a serious risk of a real and substantial danger of prejudice to the conduct of a fair trial, we will not comment on the backgrounds of the accused and the merits of the case.

On Jan 6, 2021, 53 individuals were arrested for alleged involvement in the said “primary election”, 47 of whom were eventually charged with conspiracy to commit an offense contrary to Article 22 of the NSL. The arrested were suspected of attempting to implement the 10-step plan proposed by Tai in an article published in Apple Daily on April 28, 2020. According to Au Nok-hin, who pleaded guilty to the charge and then appeared as a prosecution witness during the trial, the idea of securing a majority in the Legislative Council was first floated in December 2019 by Tai.

In total, 31 defendants pleaded guilty, four of whom agreed to testify for the prosecution in exchange for shorter sentences. Sixteen of the 47 pleaded not guilty to the charge. The solidarity of the 47 primary-poll organizers and participants no longer comprises a first order of moral concern and would probably have been relegated to oblivion had selfish individual considerations warranted it. According to prosecutor Anthony Chau Tin-hang, the defendants showed solidarity in mid-2020 by reaching a consensus on the primary polls, with the ultimate aim of winning a controlling majority in the legislature.

The consensus included advocating “five demands, not one less”, a political slogan that emerged during the 2019 “black-clad” riots. Among the demands were amnesty for the arrested protesters, establishing an independent commission of inquiry to investigate police behavior during the riots, and the introduction of universal suffrage. They were said to have plotted a “massive and well-organized scheme” to force the then-chief executive, Carrie Lam Cheng Yuet-ngor, into giving in to the above demands. It comes as a great shock and a source of grave concern that the opposition leaders intended to use the budget-vetoing card as a bargaining chip to exert pressure on the government. Such a radical act would probably have paralyzed the government.

The perceived risk of causing prejudice to the conduct of a fair trial should have kept local and foreign commentators interested in this case in a cautious disposition. ... These criticisms may constitute contempt of court partly because they were not made within the reasonable limits of courtesy and good faith and partly because they could affect public confidence in the administration of justice

Expressing no concern over the possibility that the veto might have disrupted Hong Kong’s economy, the opposition leaders have been criticized by the prosecution for turning the legislature into a “lethal constitutional weapon”. To be fair, sensible people in Hong Kong can draw on their common sense to assess the substantial economic damage that would have been brought about by the veto. Moderate democrats should reconsider any future relationships with these radical opposition leaders.

After the promulgation of the NSL, Secretary for Constitutional and Mainland Affairs Erick Tsang Kwok-wai warned that the planned primary election might violate the NSL. In spite of the above warning, the unofficial ballot proceeded on July 11 and 12 of 2020. The Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region and the then-chief executive condemned the primary election. However, the then-US secretary of state, Mike Pompeo, endorsed it. Tai ignored the warning by saying that such advocacy work was in accordance with the principles of the Basic Law. Richard Cullen disagreed in a China Daily piece, “35-Plus” Violates the Spirit of Hong Kong Basic Law, on July 23, 2020.

Tai added that vetoing the budget would not constitute “seriously interfering in, disrupting, or undermining the performance of duties and functions of the government” under Article 22 of the NSL. Some lawyers in the democratic camp supported Tai’s viewpoints. They stressed that no unlawful means were involved.

Critics further argued that the arrests of the organizers and participants of the primaries were illegal. While Tai believed that the organizers of the primaries might have a lot of wiggle room to escape from criminal liability, Tony Kwok (China Daily Hong Kong Edition, NSL Arrests in the SAR Fully Supported by Law, Evidence, Jan 8, 2021) was of the opinion that voting down the budget in the legislature irrespective of its content and with the sole purpose to bring down the government was an abuse of power akin to misconduct in public office and thus an “unlawful means” for the purpose of Article 22 of the NSL.

As mentioned earlier, the perceived risk of causing prejudice to the conduct of a fair trial should have kept local and foreign commentators interested in this case in a cautious disposition. Unfortunately, the League of Social Democrats denounced the trial as “political persecution” and demanded the defendants’ immediate release. Hana Young of Amnesty International made a similar request. Jim Risch, a Republican senator in the US, called the trial “a sham and a charade”. Hong Kong’s last governor, Chris Patten, also criticized the trial. These criticisms may constitute contempt of court partly because they were not made within the reasonable limits of courtesy and good faith and partly because they could affect public confidence in the administration of justice (SJ vs The Oriental Press Group Ltd (1998) 2 HKLRD 123). 

We strongly reject these unfair and unreasonable criticisms. Looking at the NSL through malice-tinted glasses, these critics are defaming Hong Kong’s legal system and attacking the integrity of the three trial judges. What matters above all else is that the NSL has been built on elements of post-9/11 security laws enacted in the UK and US and promoted by the UN, according to law scholars such as Kent Roach, Hualing Fu and Michael Hor.

Junius Ho is a Legislative Council member and a solicitor. 

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, and chairman of Chinese Dream Think Tank.

The views do not necessarily reflect those of China Daily.