West Kowloon Court heard the submissions ahead of the sentencing of 45 opposition figures earlier convicted of conspiracy to subvert state power.

Stewart Wong Kai-ming SC, representing Tai, said the court should take three years as the starting point for his client’s sentence and reduce it to two years after considering mitigating circumstances, including his timely guilty plea.

“Some may say that a suggestion of two years [in jail] is a bit ambitious or even audacious, but we do not make such submissions lightly,” Wong said.

“Taking into account all applicable legal principles, the specific facts of this case and the personal circumstances of [Tai], we do say such a sentence is a correct one.”

He said it was “strictly not a national security law case” as it concerned a conspiracy offence introduced in 1996, rather than the substantive offence of subversion under the legislation implemented by Beijing in 2020.

Beijing has imposed a three-tier system in classifying offenders found guilty of subversion.

Principal offenders or those committing crimes of a “grave nature” can face life imprisonment or be jailed for at least 10 years.

Those deemed to have “actively” participated in the offence can be sentenced to between three and 10 years.

Other participants can face a maximum of three years in jail, short-term detention or restrictions on movement.

Wong urged the court to sentence former law professor Tai under the lowest tier.

Mr Justice Alex Lee Wan-tang called the proposal “a bit bold”.

Wong said his client “did not blindly and knowingly pursue an unlawful course or agreement”, adding Tai had committed the offence under a “genuine, honest but mistaken belief” his scheme was allowed under the Basic Law.

But Mr Justice Johnny Chan Jong-herng said indiscriminately vetoing the government budget was a breach of the mini-constitution, regardless of whether the security law was in place.

Justice Andrew Chan Hing-wai also rejected the defence’s assertion over Tai’s limited involvement. He highlighted the continuing nature of Tai’s transgression and the impact of his public remarks that the scheme was lawful under the security legislation.

Deputy Director of Public Prosecutions Jonathan Man agreed, rejecting the defence contention that those running in the primary, rather than the organisers, played a more prominent role in the plan to topple the government.

“It is quite unacceptable to say that an organiser of a crime is not a principal offender,” he said. “I can say that any submission like that defies common sense.”

Prompted by the judges to state his position on Tai’s culpability, Man said: “A leader should be a principal offender.”

But he agreed the defendants who testified for the prosecution in the 118-day trial deserved additional sentence reductions for “reporting the offence committed by other persons”, one of three criteria for a “lighter” or “reduced” penalty under the security law.

The five defendants in court included Tai and three other organisers of the primary.

Seven other defendants – Gwyneth Ho Kwai-lam, Tiffany Yuen Ka-wai, Winnie Yu Wai-ming, Carol Ng Man-yee, Owen Chow Ka-shing, Ventus Lau Wing-hong and Roy Tam Hoi-pong – attended the hearing in an adjacent room.

Tai maintained a calm expression and at times gazed over at the public gallery. He smiled and waved as he left.

Former lawmaker turned prosecution witness Au Nok-hin also frequently looked over at the public and grinned, as if acknowledging a particular person.

Fellow prosecution witness Andrew Chiu Ka-yin gestured towards those watching the proceedings, while Ben Chung Kam-lun, the third prosecution witness at Tuesday’s hearing, wore a mask.

The fifth accused, Gordon Ng Ching-hang, remained pensive in the dock.

Prosecutors initially regarded Ng as an organiser of the poll, but abandoned that position after the court made no such findings.

The second day of the critical mitigation proceedings continues on Wednesday.

Louis Doucet, the French consulate’s press and communications chief, represented the European Union at the hearing. Peter Ku, a political and economic consul from the Australian consulate, was also present, as well as junior officer Gabriela Hulaj from the Swiss consulate and a representative from the British consulate.

More than 70 members of the public lined up outside the building in the morning to secure a seat. Former lawmaker and activist Shiu Ka-chun was among them.

“If we were there when they got arrested, there’s no reason for us not to be here for them during mitigation. I’ll go see and listen to them if possible, and I hope to let them see us and that they know that many people in different positions do care about them,” Shiu said.

Nearly 40 police officers were at the main entrance with more than 10 vehicles parked outside.

Barrister Lawrence Lau Wai-chung, who was earlier acquitted in the case, was seen outside the court shortly before 9am. He told the Post that he was there to handle a case at the Small Claims Tribunal.

Cartoonist Zunzi, barristers Gladys Li Che-hei and Margaret Ng Ngoi-yee, as well as former legislator Emily Lau Wai-hing, were also spotted entering the court.

The court convicted 14 of 16 accused who pleaded not guilty to the offence, and 31 others ­admitted the charge before the trial began early last year.

The judges, hand-picked by the chief executive to hear national security proceedings, will hear pleas for lesser sentences from the remaining 40 defendants in groups according to their polling districts over the next two months.