Hong Kong prosecutors have urged the Court of Appeal to “reverse” the acquittal of barrister and former district councillor Lawrence Lau in a landmark national security case involving 47 pro-democracy figures.
Government prosecutors on Monday challenged the High Court’s decision in May last year to clear Lau of conspiracy to commit subversion in connection with an unofficial primary election held in July 2020.
Lau was one of two defendants acquitted of the charge after standing trial for 118 days. Fourteen democrats were convicted after trial, while 31 others pleaded guilty earlier. The 45 democrats were eventually jailed, with sentences ranging from four years and two months to 10 years.
Deputy Director of Public Prosecutions Anthony Chau told judges Jeremy Poon, Anthea Pang, and Derek Pang that the trial court “erred” by failing to find that Lau agreed to a scheme, which aimed to veto the government’s budget once elected as lawmakers, ultimately forcing the resignation of the chief executive and a government shutdown.
The trial judges also made a mistake when they ruled that Lau did not have an intention to subvert the state power, the prosecutor said.
Chau argued that there was “overwhelming evidence” showing that Lau knew the objectives of Project 35+, a plan put forward by former legal scholar Benny Tai to help the pro-democracy camp achieve majority control in what was then a 70-seat legislature.
Citing Lau’s attendance in the first coordination meeting among democrats running in the Kowloon West constituency, his signing of a nomination form to join the primaries, and his Facebook post on July 14, 2020, admitting his defeat in the polls, Chau said the “overall conduct” of Lau was “consistent to the scheme.”
“We invite the court to reverse the verdict,” Chau said, adding Lau’s case should be referred back to the lower court for a retrial.
In response, Lau, who acted as his own legal representative, told the court that he had never advocated for the “five demands” stemming from the 2019 protests nor for the resignation of the chief executive. He also never advocated vetoing the government budget indiscriminately, the barrister said.
“The verdict of the trial court should not be casually interfered [with],” Lau said.
The challenge to Lau’s acquittal is part of a 10-day appeal proceeding, which also involves appeals against the convictions and sentences of democrats jailed in the subversion case that began in 2021.
On Monday, lawyers for some of the appellants began to make a joint submission, arguing that the act of vetoing government bills, including the budget, was not an abuse of a lawmaker’s power.
The trial court had sided with the prosecution and ruled that voting against the government budget indiscriminately was in breach of the powers and functions of the Legislative Council.
Representing former legislators Helena Wong and Lam Cheuk-ting, barrister Erik Shum said lawmakers who take into account political agendas when they vote for a bill “could not possibly” be seen as abusing their power.
He said legislators had “no duty” to explain their votes, adding that in any democratic society, the function of lawmakers includes the power to disapprove – a mechanism the lawyer described as “cannot be argued against.”
Shum’s arguments were echoed by Trevor Beel, barrister for journalist-turned-activist Gwyneth Ho. Beel told the court that the word “indiscriminate” was never used by the defendants, but rather was a term adopted by the prosecutors in the case.
Those who took part in the primaries only stated openly that they would “proceed with a mandate,” which Beel said was “clearly given to the people.”
“If their mandate was not considered by the government, then they would proceed to vote against the budget. That’s not an abuse of their power. That’s an exercise of their power,” he said.
Monday’s hearing saw a last-minute withdrawal from former district councillor Michael Pang, whose lawyer confirmed with the judges that he had signed an agreement to abandon the appeal. Pang was escorted away from the dock by a corrections officer shortly afterwards.
The 12 jailed democrats were in the dock on Monday. They waved, nodded, and made hand gestures to the public gallery, where their family, friends and supporters were seated.
Among the court attendees was Lee Yue-shun, the other democrat cleared of the subversion charge last year. His co-defendant, ex-district councillor Henry Wong, who was released from jail in May, was also present.
The appeal proceeding will continue on Tuesday morning.
