NSL judges seek clarification on 'principal offenders'

Eunice Lam

A panel of three national security judges asked the prosecution to clarify who the "principal offenders" are in the "35+ Subversion" case over the primary election in 2020.

The High Court yesterday started hearing mitigation arguments for the 45 defendants, of which 31 pleaded guilty and 14 were convicted after trial.

They were separated into six groups for the court to proceed with their mitigation pleas, with the first group consisting of Benny Tai Yiu-ting, Au Nok-hin, Andrew Chiu Ka-yin, Ben Chung Kam-lun and Gordon Ng Ching-hang. These five are allegedly the organizers and instigators who intended to disrupt the primary election. Au, Chiu and Chung previously testified as prosecution accomplice witnesses.

Tai, 59, was seen smiling and nodding his head to the gallery when walking into the courtroom yesterday.

As the first one to take the mitigation plea, he sat in the middle of the dock away from the other four.

Tai's lawyer, senior counsel Stewart Wong Kai-ming, stressed that Tai gradually withdrew from the primary election.

He also suggested the court start Tai's jail term at three years with a one-third reduction in taking his guilty plea into account.

Since Tai has been detained since March 2021, a sentence less than three years may mean Tai will be released immediately.

However, deputy director of public prosecutions Jonathan Man Tak-ho indicated he would push for a more severe sentence, saying "it's quite unacceptable to say that an organizer of a crime is not a principal offender" and that it "defies common sense."

National security law states that a "principal offender" or a person who commits an offense of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of no less than 10 years.

The legislation also states that an "active participant" in the offense shall be sentenced to three to 10 years imprisonment, with other participants sentenced to a jail term of no more than three years.

The judges had asked the prosecution to clarify the extent of each defendant's participation in the case as it would alter the court's considerations on sentencing.

However, Man said it was hard to do so, while adding that the organizers of the primary election or leaders behind the conspiracy were the "principal offenders."

He also said that the judges can still exercise discretion and the court has the right to impose a lighter term on Au, Chiu and Chung, who had been accomplice witnesses reporting on the offenses committed by others as stated in the NSL.

The court is expected to finish proceedings with all defendants' mitigation pleas by mid-August.