5 pro-democracy activists appeal for leniency as prosecution argues Benny Tai should be considered a key figure in primary election case

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25th June 2024 – (Hong Kong) Five defendants, including Benny Tai, Au Nok-hin, Andrew Chiu, Ben Chung, and Gordon Ng, who are among the initial group accused of organising the primary election, have begun their plea for leniency at the West Kowloon Law Courts (temporary High Court) today, marking a new development in the case of the 47 pro-democracy activists involved in the primary election.

 The court initially deliberated the sentencing principles applicable to the case. Given the “three-tier system” for the offense of subversion of state power, the penalties range from imprisonment for less than three years to life imprisonment.

During the proceedings, it was revealed that Benny Tai claimed to belong to the third category of “other participants.” However, the judge expressed doubt regarding the acceptance of the prosecution’s position, believing that if the court were to adopt such a classification, the Department of Justice would likely appeal. The prosecution responded by asserting that Tai should be considered a leader in the case, falling within the first category of “key figures and those involved in serious offences,” which could result in a life sentence or a term of more than 10 years.

The plea hearings for the 45 defendants who have been found guilty will take place in six batches from today until 5th August. Among them, Benny Tai, Au Nok-hin, Andrew Chiu, Ben Chung, as well as Gordon Ng, the initiator of the “three strikes, no votes” campaign, are the first to present their pleas.

According to Article 22 of the National Security Law, the offense of subversion of state power carries a “three-tier system” of penalties. For key figures or those involved in serious offenses, the punishment includes life imprisonment or a fixed-term imprisonment of more than 10 years. For active participants, the penalty ranges from three years to less than 10 years of imprisonment. For other participants, the punishment could be imprisonment for less than three years, detention, or community service.

The prosecution agreed that the roles of each defendant could be assessed separately, considering different levels of involvement.

During the morning session, the prosecution presented its arguments on sentencing principles, emphasising the conspiracy aspect of the case and the three-tier system stipulated in the National Security Law. It contended that the court should consider the minimum sentence under this framework. The prosecution further highlighted that even if the defendants were found to be involved in the same conspiracy, the court could still impose different levels of punishment based on their respective degrees of participation and roles.

In response to the judge’s inquiry regarding how the prosecution would categorise the defendants as “key figures or those involved in serious offences,” “active participants,” or “other participants,” the prosecution declined to disclose its position, stating that it was inappropriate to do so. The judge then drew an analogy with a drug trafficking case, suggesting that if a defendant claimed to be merely transporting drugs, the prosecution would disagree. Therefore, if such a claim were made, it would inevitably be clarified during the court proceedings, emphasising the role of the defendant as a mastermind. The judge advised the prosecution not to respond immediately.

Judge Alex Lee questioned the prosecution’s position, as some defendants argued that “key figures or those involved in serious offences” should refer to individuals who, if elected to the Legislative Council, would veto the budget, rather than the primary election organisers. The prosecution contended that this argument defied common sense, as their organising efforts constituted a significant and serious offence.