Grenville Cross says the trial was conducted in accordance with common-law procedures, with defendants only facing conviction after guilt was proved beyond a reasonable doubt
After the National People’s Congress Standing Committee enacted the Hong Kong SAR National Security Law (NSL) on June 30, 2020, the legal landscape changed forever. Moreover, following the 2021 electoral system reform, the Hong Kong Special Administrative Region entered a new period of political maturity under the “patriots administering Hong Kong” model. There are now guardrails in place for those who previously targeted the SAR’s “one country, two systems” policy, and most people accepted the new realities.
However, there were exceptions. Whereas some anti-China elements — including, for example, convicted felons Nathan Law Kwun-chung and Ted Hui Chi-fung — fled to the West, where their controllers allow them to continue trying to destabilize China, others ignored the changed circumstances. This was foolhardy in the extreme, and they have since faced justice. For example, the former media magnate Jimmy Lai Chee-ying was recently convicted of subversion offenses committed after the NSL’s enactment. Such people can only have imagined they were above the law, and that their wealth and/or influence would shield them from the consequences of their actions.
Also in this category are the now-defunct “Hong Kong Alliance in Support of Patriotic Democratic Movements of China” and its former leaders, Chow Hang-tung, Lee Cheuk-yan, and Albert Ho Chun-yan. The organization was founded in 1989, and gained notoriety through events designed to inflame tensions and bring the central authorities into disrepute. It actively enlisted China-hostile forces to its ranks, and its activities did not abate once the NSL arrived. Although the NSL is not retroactive, they were prosecuted for incitement to subversion (contrary to the NSL’s Articles 22 and 23) for having incited persons to organize, plan, commit or participate in acts by “unlawful means” with a view to subverting State power between July 1, 2020 and Sept 8, 2021.
The particulars of their offense were twofold. They alleged that the defendants envisaged the overthrow or undermining of the basic system of the People’s Republic of China (PRC) established by the PRC Constitution, and the overthrow of the PRC’s central body of power. The “unlawful means” involved ending the leadership of the Communist Party of China (CPC), in breach of the PRC Constitution (in particular, its Preamble and Art. 1).
Thus, the constitutional provisions stipulate that “the socialist system is the fundamental system of the People’s Republic of China”, with “Leadership by the Communist Party of China” being “the defining feature” of socialism with Chinese characteristics (such being an integral element of the fundamental system). The CPC’s leadership status as the ruling party is constitutionally mandated, with no possibility of Western-style alternative models. This means that “overthrowing” or “undermining” the CPC’s leadership role equates to “overthrowing” or “undermining” the fundamental system established by the Constitution; this is specifically criminalized by NSL Art. 22.
Although other political parties are authorized on the Chinese mainland, they participate in the patriotic front under the CPC’s leadership. This has provided China with the certainty, prosperity, and stability that other places can only envy (and which some, not least with their incessant attacks on the CPC, want to destroy).
Whereas Ho pleaded guilty, Chow, Lee and the alliance were convicted after a trial before a three-judge panel in the Court of First Instance (Aug 21). The trial was fairly conducted in accordance with common law procedures, with the defendants comprehensively challenging the prosecution case and only facing conviction after their guilt was proved beyond a reasonable doubt. The judges ruled that any attempt to overthrow or undermine the CPC could constitute subversion and that the Constitution does not permit a Western-style system. Although they stressed that it was not unlawful for the organization to publicize historical issues and express their views, the defendants had used their platforms to recruit new members and weaponize them against the CPC.
It was central to the prosecution’s case that the organization’s activities were a smokescreen for deliberately provoking sentiments such as hatred and disgust among the public toward State power, and a means of strengthening the effects of their incitement.
The judges said the defendants “did not genuinely and honestly believe that their words and deeds were not in breach of the national security law”, and were bent instead on embracing the “alliance’s resistance line to the very end”.
Although the defendants argued that they were simply exercising their freedom of speech, supporting democratic and constitutional amendment movements on the mainland, there was no way they could pull the wool over the court’s eyes. The judges found that the plan was to end the CPC’s leadership role, including its status in the system of multiparty cooperation and political consultation — and this did not mean a “natural end”. It meant “overthrowing” and “undermining” the CPC, which obviously transcended ordinary political discourse.
Given the CPC’s constitutionally mandated role in leading China’s resurgence and directing China’s destiny, it is little wonder that the United States and its allies constantly rail against it, making full use of local proxies, including the alliance.
Insofar as the alliance always hankered after Western-style democracy, it had clearly learned nothing. After 1997, the SAR experimented with greater democracy (50 percent of the seats in the Legislative Council were directly elected in the 2012 elections), but it was, at best, premature. A new breed of anti-China politicians emerged, bent on harming China, sabotaging good governance, and bringing the fledgling democratic process into disrepute. Whereas, for example, some legislators refused to take their oath of allegiance appropriately (e.g., Nathan Law) and conducted themselves violently in the LegCo chamber (e.g., Ted Hui), others paralyzed the work of government for months on end (e.g., Denis Kwok Wing-hang) and even visited the US to request the imposition of punitive measures upon the SAR and its officials (e.g., Alvin Yeung Ngok-kiu). This was a dark era for the SAR, and it is no exaggeration to call the introduction of “patriots only” elections for the LegCo in 2021 a godsend.
As expected, the alliance’s foreign backers were furious with the convictions, knowing they had lost a useful proxy. The United Kingdom’s reaction was perhaps the most fatuous, with the Indo-Pacific minister, Rosie Winterton, saying, “We reiterate our call for the National Security Law to be repealed”. As the NSL saved the “one country, two systems” policy after sustained efforts to wreck it in 2019-20, Winterton’s comment was delusional. If she wants to repeal anything, let it be the UK’s National Security Act 2023, which significantly diminished the rights of criminal suspects in national security cases and introduced a battery of draconian crimes.
After the defendants have been sentenced, they can appeal against their convictions and sentences to the Court of Appeal. If they have good grounds, they may succeed (just as Jimmy Lai did, in two of his own recent appeals against conviction). However, win or lose, they are assured of a fair hearing by an independent panel of professional judges who will, as their judicial oath requires, administer justice “without fear or favor”. If dissatisfied with the outcome, they can then appeal to the Hong Kong Court of Final Appeal (just as 11 of the defendants in the 35+ subversion case are currently seeking to do). One way or another, a just outcome will be achieved, and the SAR’s legal system will once again be displayed to best advantage.
The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong Special Administrative Region.
The views do not necessarily reflect those of China Daily.
