NSL Trial of 47 Democrats: 5 Developments This Week (20-24 Feb 2023)

Week 3: 20-24 February 2023 

The long-anticipated trial of the 47 democrats opened on Monday 6 February 2023. The trial concerns the 47 democrats who organised or participated in “unofficial” primaries in July 2020. As a result of these primaries, 55 people were arrested in January 2021, in the largest crackdown since the National Security Law was passed. 

Of these, 47 have been accused of “conspiracy to commit subversion” and are now facing trial. The majority of defendants have been in detention for 2 years, as only 13 have been granted bail. 31 of the defendants have pleaded guilty. This is one of the most significant trials since the National Security Law was passed.

Here are the updates on the third week of the trial of the 47 democrats: 

Development 1: Prosecution plays clips of press conferences

The prosecution started using video clips last week, when they used videos of election forums that were held in preparation of the election primaries and asked Au Nok-hin to identify the participants individually. 

This week, the prosecution continued to use clips of election forums and also introduced clips of the press conferences related to the unofficial primaries. They again asked Au to identify the participants and whether he was one of the attendees. Au’s barrister argued that the videos were not strictly related to his client, nor was it clear how the videos were related to “conspiracy” and that the prosecution did not clearly define this principle. 

Development 2: The Civic Party promised to win a majority in the Legislative Council and oppose government legislation

In one of the press conference videos played by the prosecution, the leader of the Civic Party stated that the Civic Party would strive for 35+ (a majority of seats in the Legislative Council), and had the responsibility to promote this goal. 

He also promised that if the government did not respond to the five major campaign pledges, the Civic Party would oppose "every bill, every financial appropriation", and will also oppose the budget "without hesitation", so that the Chief Executive will dissolve the Legislative Council for re-election and resign. 4 relevant documents were also disclosed by the court. 

The Director of the Liaison Office of the Central Committee of the Communist Party of China criticized the campaign to gain a majority of seats in the Legislative Assembly as "seizing power". 

Development 3: WhatsApp messages cited by the prosecution causes confusion

This week, the prosecution also cited Whatsapp messages from the group chat of the primary election organizer. In particular, they highlighted a "black and white" agreement between the participants, which was intended to signal support for the “35+ plan”. Although the agreement was not signed, multiplate candidates agreed to sign the document, and it was deemed to have mutual consent. 

The prosecution argued that the agreement was physically circulated at a meeting before the messages. Au also testified that he and Tai circulated the document at one of the coordination meetings. However, there is no physical evidence of this. 

In its use of WhatsApp messages, the prosecution has not used them in a chronological order, causing confusion for the court. The judge accused the court of “jumping around” and that it was difficult to keep up and follow the plot. 

Development 4: Court raises concerns about the prosecution’s evidence

The prosecution has been criticised for its decision to use two police chiefs as expert witnesses because they filed their expert reports late. The prosecution argued that it took them a long time because it was so difficult to find these expert witnesses and previously recorded in October 2022 that there were no expert witnesses. The court ultimately agreed to allow these expert witnesses to be present in the court but has not commented on whether they will accept the contents of the expert reports at this stage. 

On Thursday 23 February, the court issued a written statement for its decision in this matter. It stated that the prosecution’s explanation for the delayed delivery of the report was unreasonable, and the prosecution should prepare the case based on a strict basis of proof. Nevertheless, the court concluded that allowing the prosecution to submit the report would not cause irreparable harm to the defendant, or would it affect the fairness of the trial, and it could be compensated for by a short adjournment or a corresponding compensation order.

Development 5: Hong Kong government submits proposal to limit foreign lawyers in national security cases

The Hong Kong Department of Justice has submitted a proposal to the Legislative Council Panel on Administration of Justice and Legal Services regarding whether foreign lawyers can act in national security cases. The proposal suggested that the court must obtain a certificate from the Chief Executive under Article 47 of the National Security Law before deciding whether to allow the ad hoc admission of overseas counsels. The result of this proposal will have an impact on the 47 trial as well as others involving the National Security Law. 

This follows from a decision in December 2022 by Beijing’s National People’s Congress Standing Committee to interpret the National Security Law to allow Hong Kong’s Chief Executive to decide whether overseas lawyers can work on cases involving the National Security Law.