“The 47 Defendants’ Case”
The First Major National Security Law Case of Hong Kong
What Does This Case Tell Us about Hong Kong’s Rule of Law
Background
NSL
1. The National People's Congress of the People's Republic of China promulgated the Hong Kong National Security Law ("NSL")----implemented with immediate effect ----at 2300 hours on 30 June 2020, in which, amongst others, a new offence of "Subversion" under Article 22 was enacted. This offence--- a virtual adoption of the statutory Article 105 of the Criminal Law of the People's Republic of China---lacks definitions and details. There are no similar provisions in the common law.
2. The NSL was legislated by China’s National People’s Congress (“NPC”) without consultation or discussion in Hong Kong and it does not allow any amendment.
The 2020 Pro-democracy Primary Election
3. On 11 and 12 July 2020 a public primary election was held by a group of Hong Kong social and pro-democracy activists, with a turn-out of 600,000 predominantly pro-democracy voters, the purpose was to determine the popularity of the democratic candidates in the coming legislative council (“LegCo”) election, with a view to achieving a majority of more than 35 seats (out of the 70 seats) in LegCo. And so this primary election is also known a “35+” campaign.
4. The Hong Kong SAR Government said the primaries---held publicly in good order--- might breach the NSL but without taking action to ban the election.
5. In the wake of the primaries the Hong Kong SAR Government on 31 July 2020 announced that the LegCo election due to be held in September 2020 was to be postponed for one year to October 2021 on the ground of COVID pandemic. Accordingly, all these pro-democracy candidates have never had the opportunity to participate in the 2020 LegCo election.
The Massive Arrest by the Hong Kong Police Force
6. On 6 January 2021, the Hong Kong police arrested 55 persons who were directly or indirectly involved in the primary election. They were released on police bail within two days after the arrest. Then, on 28 February 2021, 47 persons of them were re-arrested, charged under Article 22 of the NSL for "Conspiracy to Subvert" (later known as the "47 Defendants' case"). They were brought before the court on 1 March 2021. With the exception of a few, most of them were immediately remanded in custody until this date. Subsequently, a total of thirty-one of the 47 Defendants had pleaded guilty to the charge before trial; sixteen defendants who pleaded not guilty fought through the proceedings with 14 convicted after trial. Together, with the exception of ten defendants given bail pending trial, the rest of the thirty-seven defendants have been remanded in jail since March 2021 pending trial and/or sentence.
7. The prosecution's case is premised on allegations that the 47 Defendants had conspired to seek a majority Hong Kong legislature through the primary election with a view to indiscriminately vetoing the Chief Executive's government budget ultimately pressuring the latter to introduce universal suffrage in Hong Kong.
The Hong Kong 47 Verdict in 2023
8. After a 7-month trial in 2023, the three judges appointed by the Chief Executive to deal with the NSL cases without jury convicted 14 of the Defendants who had pleaded not guilty. In their verdict delivered in May 2024, the judges found that by agreeing to indiscriminately veto the Government's budget and notwithstanding that the Defendant had never had a chance to participate in the (subsequently postponed) LegCo election they had nevertheless agreed and intended to seriously disrupt hence subvert the state.
The Violation of Constitutional Rights
The Fast-Passed NSL
9. The Hong Kong court in various cases has implicitly acknowledged that the NSL has an overriding effect over the rights guaranteed by the Basic Law and the original Hong Kong human rights laws.
10. The NSL, promulgated and implemented with immediate effect at 2300 hours on 30 June 2020, provides ambiguous meaning and definitions of offences unfamiliar to the common law of Hong Kong. Its immediate implementation absolutely allows no time for the Hong Kong public having enjoyed many generations of freedom and civil liberties to think, slow down, brake and adjust, before plunging into a colossal legal trap. The 47 Defendants’ case is the first blood in this NSL era.
11. The "47 Defendants' case" has demonstrated how the NSL is introduced and is to be arbitrarily enforced to violate exercise of the political rights previously enjoyed by the Hong Kong people.
The Removal of Jury Trial and The Deprivation of Constitutional Human Rights
12. The NSL has effectively removed the right to jury trial of national security offences, designating all the proceedings to be dealt with by a panel of NSL judges appointed by the Chief Executive; thereupon undermining the independence of the judiciary.
13. Since early 2020 in the pre-NSL months the 47 Defendants had been conferring and conducting their political scheme fully in accordance with and within the constitutional framework of the Basic Law. They openly and peacefully exercised their political rights guaranteed by the International Covenant of the Civil and Political Rights ("ICCPR"). By convicting the 45 Defendants of the previously unknown NSL offence of Subversion the judges have given zero consideration to their constitutional rights notwithstanding that even in the beginning of the NSL it has provided that the ICCPR remains applicable.
14. The three judges throughout the trial proceedings of the 47 Defendants’ case in the absence of jury have assumed a proactive prosecutorial role in examining and cross-examining all the witnesses including the defendants who elected to testify.
15. In common law, the judges will normally avoid descending into the arena by putting questions to the witnesses unless for some reasons recognized and accepted as necessary. This is because a judge’s questions are accepted as admissible and reasonable for the purpose of fair determination and disposal of the case.
16. The three trial judges from the beginning of the 120 days of proceedings took up much of the time putting as many questions as they pleased to all the prosecution as well as defence witnesses. This is the immediate fallout when the defence are deprived of a jury trial. For example, during the examination-in-chief of a defendant, the three judges would punctuate the evidence-in-chief by actively cross-examining from the bench; or, ask many more questions than the defence counsel in the way of cross-examination. Often the three judges’ cross-examinations would continue into the prosecution’s cross-examination of the same defendant, leaving a redundant prosecutor standing idly in court.
17. This common law adversarial trial in the absence of jury and being left in the hands of three NSL appointees was changed into an inquisitorial enquiry.
18. The three trial judges would not shy away from putting questions to the defendants which would amount to inviting self-incrimination. For example, a defendant being a veteran election candidate had previously set up election campaign in the streets with published political slogan “Resist dictatorial regime!”. That being a piece of evidence adduced by the prosecution at trial, and during the defendant’s testimony, the chair-judge Mr Justice Andrew Chan asked him “Which dictatorial regime did you mean?” in the context knowing that the defendant faced a charge of Subversion of the state.
Common Law Can No Longer Protect Citizens
19. The three trial judges know very well that the core reason for this prosecution was about the defendants’ previous campaign for a democratic election, which if succeeded would pose a real threat to the Central Government’s tight control of Hong Kong’s political system. They knew that the prosecution’s allegations of their electoral rhetorics such as “indiscriminate veto of the government’s budget”, or “Five Demands Not One Less”, were nothing but red herring. Knowing that this is in essence a political trial, the three judges would repeatedly come down on the defence disallowing any arguments that the defendants had been genuinely pursuing their visions towards a free and democratic society: “We do not allow any attempts to turn this court into a forum to proclaim any political thoughts; we have no problem that you do it outside this court.”
20. One clearest example is that contrary to the practice of all common law legislation, a grace period after enactment before implementation of a new legislation would be allowed so that the public can learn and understand how to adapt to and observe the new law. The NSL being a draconian legislation introduced near mid-night on 1 July 2020 with immediate effect, that is, 10 days before the primary election was held on 11 and 12 July 2020, without prior consultation and a period of public ‘learning’, amounted to throwing in a road block on a highway with an 80 km/hour speed limit only inches before the coming traffic. The three judges have deliberately ignored the sinister fact that the defendants’ unavoidable crash against the newly enacted NSL was a legislative trap.
21. Although the three judges had acknowledged in the proceedings that the NSL has had no retrospective effect, in finding 45 defendants guilty their verdict clearly shows that they have applied the evidence retrospectively from early 2020 through to August 2020.
The Fall of the Hong Kong Rule of Law
The Role of the Hong Kong Prosecution
22. The Secretary for Justice, leading the Criminal Prosecution Division of the Department of Justice, is solely responsible for public prosecution.
23. Traditionally, the Secretary for Justice, formerly known as the Attorney General before the handover in 1997, takes up the role of the guardian of social justice. He would adhere to a set of protocol which, among other things, includes making the prosecution decisions independently.
The Obligation to Take International Law into Account
24. Hong Kong is a state party of the International Covenant on Civil and Political Rights (ICCPR). It has the obligation to adopt the ICCPR. However when the police have arrested and the Secretary for Justice has prosecuted a considerable number of speech, press, and opinion related cases, it has violated Article 25 of ICCPR which says, "every citizen shall have the right and the opportunity...without unreasonable restrictions: (a) to take part in the conduct of public affairs, directly or through freely chosen representatives; (b) to vote and to be elected at genuine periodic elections which shall be by universal and equal suffrage and shall be held by secret ballot, guaranteeing the free expression of the will of the electors".
25. In 2022, the UN Human Rights Committee, which oversees the implementation of the ICCPR, raised concerns about the passage of the NSL by the National People's Congress without consultation with the public and the civil society in Hong Kong. "deeply concerned about the overly broad interpretation and arbitrary application of the Law" and noted "with grave concerns" about the shortcomings of the NSL, including: "(a) the lack of clarity on 'national security' and on types of behaviour and conduct that constitute a criminal offence under the Law, which undermines the principle of legal certainty;...(c) the absence of mechanisms under the Law to allow suspects national security offences to challenge enforcement measures taken by the authorities of the Central People's Government and seek judicial remedies in case of in violation of Covenant rights by law enforcement officers of the Central People's Government; (d) the excessive power of the Chief Executive and other measures provided for in the Law, which can effectively undermine the independence of judiciary and procedural safeguards for access to justice and the right to a fair trial...; (e) the extensive investigative powers of the Hong Kong Police Force's department for safeguarding national security and the absence of judicial oversight thereof, provided for under article 43 of the Law and the implementation rules...."
Under NSL, There Are No Longer Independent Judiciary and The Rule of Law
26. The Secretary for Justice in enforcing the NSL since 2020 has prosecuted all the cases by removing jury from the High Court trial proceedings, neither the defence nor the court can overrule the SJ’s decision. It now becomes clear that all High Court NSL cases will be tried without jury, this will be a normality despite the fact that the jury system is provided and guaranteed by the Basic Law.
27. Since the NSL, all the Hong Kong political parties and NGOs, social and public activities with social and political elements, speeches, press and publications, have become targets of arrest and prosecution. The 47 Defendants’ case was regarded by the authority as an organised political campaign that----if successful--- would democratise thus undermining the China-led electoral system of the Hong Kong LegCo. Such objective was perceived to be a serious threat to the Central Government’s authority of Hong Kong.
Conclusion
The "47 Defendants Case" is a clear example of the increasing erosion of the rule of law and the shrinking of fundamental constitutional rights in Hong Kong. Hong Kong once prided itself on its rule of law, with a relatively independent and transparent judicial system. However, with the implementation of the National Security Law (NSL) and the crackdown on pro-democracy figures, the judiciary has become a tool for political trials, and the rule of law in Hong Kong faces unprecedented threats.
The defendants in the "47 Defendants Case" are not criminals in the traditional sense. Their "crime" was simply their participation in a pro-democracy primary election. However, this case has been misused by the authorities to charge them with subversion of state power, signaling that Hong Kong's political and judicial environment has diverged significantly from the Basic Law, posing a severe threat to the fundamental political rights of its citizens.
This is no longer simply a legal case; it symbolizes the gradual disappearance of freedom and rights in Hong Kong. In this case, basic civil rights have been ruthlessly stripped away. Freedoms such as freedom of speech and the right to vote have been framed as actions of subversion, which not only distorts the law itself but also represents a complete undermining of the freedoms and democratic values Hong Kong once embraced.
We, The 29 Principles, would like to urgently call for the attention and intervention of the international community. Countries around the world must continue to monitor the situation in Hong Kong and steadfastly support the people of Hong Kong in their struggle to protect their democratic freedoms under oppression. We believe Hong Kong’s future depends on the ongoing support from the international community for its rule of law and human rights. Only with the strong solidarity can the legal system of Hong Kong avoid further political manipulation and return to operating under principles of fairness, transparency, and independence, safeguarding the fundamental rights and freedoms of every citizen.