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Verfssungsblog recently published a most useful "explainer" on the 'Hong Kong 47 'verdicts. The Explainer was authored by my friend and colleague Dr. Pui-yin Lo, a barrister in private practice in Hong Kong and a
part-time lecturer of the Faculty of Law of the University of Hong Kong. He explains his objectives in the opening paragraph to the essay:
The issues around this trial and the trajectories of the development of the application of the NSL for HK-SAR and its interpretation by HK-SAR Courts is fascinating. Statements by the European External Action Service may be accessed HERE; the statement by the US Congressional-Executive Commission on China may be accessed HERE.Recently, the first court verdicts in the trial surrounding the “Hong Kong 47” were handed down. The trial is one of several political trials that are underway in Hong Kong (HK), a Special Administrative Region (SAR) of the People’s Republic of China (PRC). These trials are political partly because the accused are political figures involved in the 2019 civil unrest, partly because the accused are being tried under the National Security Law (NSL) introduced into HK by the PRC Central Authorities, and partly because they have been didactic spectacles revealing the actions and consequences sought by the accused. This blog post explains the background of the “Hong Kong 47” case and shows why it raises questions that are of interest outside of Hong Kong as well.
The essay may be accessed in the original Verfassungsblog HERE, and follows below.
Dr. Pui-yin Lo
Recently, the first court verdicts in the trial surrounding the “Hong Kong 47” were handed down. The trial is one of several political trials that are underway in Hong Kong (HK), a Special Administrative Region (SAR) of the People’s Republic of China (PRC). These trials are political partly because the accused are political figures involved in the 2019 civil unrest, partly because the accused are being tried under the National Security Law (NSL) introduced into HK by the PRC Central Authorities, and partly because they have been didactic spectacles revealing the actions and consequences sought by the accused. This blog post explains the background of the “Hong Kong 47” case and shows why it raises questions that are of interest outside of Hong Kong as well.
A Verdict on 30 May 2024
The verdict of the Court of First Instance in the trial, delivered on 30 May 2024, led to expressions from Australia, Canada, the EU, the UK, the US and the UN of “serious” concern over the prosecution being “politically motivated” against “peaceful political [activities and exercise by the accused of their right to freedom of speech, of assembly and of political participation] that should be legitimate in any political system that respect basic democratic principles”. Shortly after the verdict, two non-permanent judges of the HK Court of Final Appeal from the UK tendered their resignations.
Despite the hullabaloo surrounding the trial, the focus should be on the defendants, the charge and the verdict in HKSAR v Ng Gordon Ching Hang & Ors [2024] HKCFI 1468.
The Defendants
The ”Hong Kong 47” refers to all defendants prosecuted on a charge of conspiracy to commit subversion. However, only 16 of the 47 went through the full trial; the other 31 pleaded guilty and will be sentenced later in the summer of 2024. During the 118-day trial, four of those who pleaded guilty testified for the prosecution. Ultimately, the court convicted 14 and acquitted two.
The Scheme of “Subversion” by “unlawful means”
The allegations were complex. They claimed that the defendants conspired together and with others, with a view to subverting State power, to organize, plan, commit or participate in, by unlawful means, a scheme first to obtain a controlling majority in the Legislative Council (LegCo). This LegCo majority would then indiscriminately refuse to pass any budgets or public expenditures introduced by the HKSAR Government, regardless of their contents or merits. The object of these actions was to compel the Chief Executive of the HKSAR (CE) to dissolve LegCo under Article 50 of the Hong Kong Basic Law (HKBL) and ultimately causing the CE to resign under Article 52 of the HKBL when the freshly elected LegCo continued to veto any Government budget or public expenditure (“the Scheme”). The prosecution argued that the Scheme would paralyze the operations of the Government and that participants in the Scheme should be punished on the basis that they were “seriously interfering in, disrupting or undermining the performance of duties and functions in accordance with law by the body of power of the HKSAR”.
Some media reports suggested that the defendants were prosecuted for holding “primary elections” of pro-democracy candidates. These reports were misleading, as they incorrectly interpreted one step in the process (the “primary elections” held to improve the chances of getting candidates elected) as the object of the criminal agreement or conspiracy. Instead, the prosecution case against the 16 was that they and others agreed to pursue a convoluted course of conduct, which aimed to secure and use a controlling majority in LegCo to compel the CE to respond to their common political agenda (also known as the Five Demands). They intended to achieve this through the scheme described above, ultimately forcing the CE to choose between concession and resignation. The acquittals of the two defendants by the Court were due to insufficient evidence on the knowledge and commitment of each of them to the Scheme.
A point of importance came from the Verdict’s holding that the NSL was not intended to be retrospective and did not have retrospective effect (Verdict, Annex D, paras 23, 24). This confirms the view that had the defendants ceased implementing their programme after the NSL came into operation on 30 June 2020, such as by heeding warnings from the Central Authorities about their activities potentially involving “subversion”, there would not have been a prosecution based on this charge.
The real issues, therefore, are what constitutes “subversion” under the NSL and whether the sequence of acts allegedly agreed to be performed satisfied the elements of “subversion”. The NSL’s crime of subversion under its Article 22 prohibits four categories of acts. The category relevant to the present prosecution was “seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of power of the HKSAR” (“the Article 22(3) prohibition”). The crime also requires establishing a specified “means” of committing the prohibited act, with the prosecution alleging commission by “other unlawful means”. The crime further requires proof of commission “with a view to subvert the State power”, a specific mental element (Verdict, paras 9-10).
Seriously interfering in, etc the performance of the HKSAR’s body of power
The prosecution alleged that the Scheme, if carried out, would have seriously interfered in, disrupted or undermined the performance of duties and functions in accordance with the law by the body of power of the HKSAR. The Court, consisting of a panel of three judges, agreed. The judges reasoned that the “indiscriminate” approach towards the HKSAR Government’s budgets and expenditure proposals underlined in the Scheme would prevent the Government from obtaining provisional appropriation of public funds from LegCo. Consequently, the Government could only self-authorize short-term appropriations according to past spending (thus thwarting all new policies and increases in expenditure). This situation was deemed to fall within “seriously interfering in, disrupting or undermining” the performance of the HKSAR’s governmental authorities (Verdict paras 97-100). Commentators such as Albert Chen and Zhu Guobin have noted that the Article 22(3) prohibition was introduced in the NSL to deter acts such as the invasion and damage of facilities of the LegCo Complex during the 2019 civil unrest. However, Chen questioned whether this prohibition could be applied to the “Hong Kong 47”. Although Chen did not further elaborate on this point, one likely consideration could be that upon election to form a simple majority in LegCo, the defendants would have become actors capable of applying the HKBL’s provisions for LegCo to check the CE (ie Articles 50 to 52). Observers of American politics are familiar with occasional shutdowns of the US federal government offices following the failure of Congress to approve appropriations before a statutory deadline due to entrenched and unresolved partisan political differences and priorities. Hence, it might seem fundamentally baffling to Westerners familiar with partisan parliamentary politics that prosecution could be sustained against aspiring “qualified constitutional actors” within the HKBL’s design.
The counter-intuitive argument justifying the prosecutor’s case would have to rely on the PRC Central Authorities’ position, maintained since 2007 and elaborated ever since, that the HKSAR’s government is “executive-led”, with the CE being both the leader of the HKSAR accountable to the PRC Central Authorities and the leader of the HKSAR Government. While the CE is the “HKSAR’s body of power”, the CE is a non-partisan officeholder who does not command a majority in LegCo and is vulnerable to being checked and potentially overthrown by a determined opposition holding a majority.
Applying the Article 22(3) prohibition to qualify what LegCo members may unite to do thus appears conducive to the PRC Central Authorities’ “constant policy” to “continue to support [the CE] and the HKSAR Government in exercising law-based governance”. Some commentators familiar with the formulation of the HKBL and its subsequent implementation might characterize this approach as divergent from the PRC’s original conception of “One Country, Two Systems”. This principle was designed to transition Hong Kong’s territory, economy, and way of life to Chinese sovereignty. On the other side, the PRC Central Authorities have insisted on “One Country, Two Systems” as a theory that evolves with the times and provides support for new ways of governance through what the PRC Central authorities refer to as “innovation”.
Other unlawful means
Article 22 of the NSL refers to the means of commission as “use of force or threat of force or other unlawful means”. The prosecution here alleged that the defendant’s “other unlawful means” were breaches of the duty of a LegCo member under Articles 73 and 104 of the HKBL. The Court rejected the defendants’ attempts to narrow the interpretation of “other unlawful means” to acts connoting force or criminal offences. The Court instead accepted the prosecution’s submission that LegCo members “collectively had a constitutional duty to examine and approve budgets when the occasion arose based on their merit” and “a deliberate refusal by the majority of LegCo members to examine the budgets regardless of their contents and merits would be a clear violation of [Article 73]” and of the requirement to “uphold the Basic Law” in the LegCo Oath, thereby constituting the requisite “unlawful means’ (Verdict, paras 35, 37-42, 74. 77, 81, 88). Whilst this conclusion may have surprised the defendants, it applies to holders of public offices in the HKSAR who are required by law to take an oath of constitutional fidelity and allegiance and does not necessarily pose a concern to HKSAR residents generally.
Concluding remarks
The “Hong Kong 47” case involves a substantial portion of opposition politicians who were active back in 2019 and 2020. Detention pending trial or sentence and bail conditions have meant that they have ceased their political activities, and their movements are restricted. Several others were arrested in the same case in 2021 but not charged; they continue to be subjects of investigation. This case has revamped the Hong Kong political landscape. Further, the case is also of interest to (comparative) constitutional law scholars outside of Hong Kong because the topic of criminalizing abusive or unfaithful constitutional action is at its centre.
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