Hong Kong 47: lawyer creates stir by suggesting court looks to mainland China legal precedent
- City’s national security law and mainland’s criminal code are enacted by the same legislative body, defence counsel Cheung Yiu-leung says
A lawyer seeking leniency for one of 45 Hong Kong opposition figures convicted of conspiracy to subvert state power has raised eyebrows by suggesting that judges sentence them by referring to mainland China court precedents.
The second session of mitigation proceedings in the city’s largest national security trial began at West Kowloon Court on Tuesday, with six former district councillors pleading for lighter punishments.
The defendants highlighted that their roles were limited and that the conspiracy, linked to a 2020 unofficial legislative “primary” election, had never come to fruition.
Defence counsel Cheung Yiu-leung, representing Clarisse Yeung Suet-ying, said the three presiding High Court judges could refer to mainland legal authorities in sentencing.
He explained that both the city’s national security law and the mainland criminal code were enacted by the same legislative body, the National People’s Congress, even though the latter was not binding in local courts.
“I think we should say that we’re actually surprised by your attempt to use the mainland authorities in mitigation, which we don’t see as a very wise course of action. It actually opens a can of worms,” Lee said.
Fellow justice Johnny Chan Jong-herng added many cases would “jump out of context” if the prosecution was also allowed to cite mainland laws in suggesting the appropriate penalties for national security offenders in Hong Kong.
The lawyer subsequently asked the bench to “ignore” his comment.
Cheung in his oral submission also highlighted Yeung’s “excellent” public service and argued she had taken part in the primary out of a benign motive to better serve the community.
Paul Zimmerman, a former vice-chairman of Southern District Council, and Federation of Drama Societies president Luther Fung Luk-tak are among the 32 names found in the mitigation letters submitted on Yeung’s behalf.
Another defence lawyer, Nigel Kat SC, said the scheme devised by legal scholar Benny Tai Yiu-ting to undermine the government through the unofficial poll was “highly unlikely to come to fruition”.
He submitted that some primary candidates were disqualified by election authorities, while it remained uncertain whether those eligible would, if elected, cast an indiscriminate vote against the government’s budget and force the chief executive to step down.
“The criminality here is that they intended to get a little bit of power that appeared in the Basic Law [the city’s mini-constitution] to be lawful. This isn’t a heinous, heinous crime,” Kat said.
The senior counsel urged the judges to “extend some personal mercy” to his client, Tiffany Yuen Ka-wai, who he depicted as a “socially-conscious young woman” who “got into prison by being kind”.
Kat also revealed his client got married while in custody and was now hoping to start afresh with her husband after completing her sentence.
Robert Pang Yiu-hung SC, who spoke on behalf of Fergus Leung Fong-wai, acknowledged his client was an “active participant” in the crime which would warrant a jail sentence of three to 10 years if the security law’s sentencing regime was to be applied in this case.
He further argued Leung’s culpability was at the lower end of the scale due to the limited role he played after the security law took effect, as well as his lack of a “Plan B” after he was disqualified by election authorities.
Citing Leung’s mitigation letter, Pang said the former politician now admitted that some of his public demeanours had been immature and caused harm to his loved ones.
The senior counsel also sought to convince the judges that his client’s involvement in drafting an online declaration, titled “Resolute Resistance, Inked without Regret”, was only “supplementary” to the scheme.
In the declaration, primary candidates pledged to be bound by its result and agree to block the government’s financial blueprints once elected.
But Mr Justice Andrew Chan Hing-wai highlighted the manifesto had never been withdrawn despite the enactment of the security law.
The judge added that Leung drafted the declaration because he thought Tai’s plan was “too moderate”.
Lawyers acting for Tat Cheng Tat-hung and Andy Chui Chi-kin submitted they were the least culpable in the scheme due to their minor roles and lack of influence in the political arena.
Their counsel said they deserved not more than three years imprisonment.
The court will hear pleas of mitigation from Michael Pang Cheuk-kei, the last of the six accused in the batch, when the hearing resumes on Wednesday.
The Beijing-imposed security law provides for a three-tier sentencing framework, with the most serious offenders liable to at least 10 years in jail for subversion.
