Top court overturns convictions of trio from disbanded alliance

Ayra Wang

The city's top court overturned the convictions and sentences of three former members of a now-disbanded pro-democracy group for their refusal to submit information to national security police officers back in 2021.

This landmark case is the first trial concerning the implementation of rules under the city's national security law.

The trio - former vice-chairwoman of the dissolved Hong Kong Alliance in Support of Patriotic Democratic Movements Tonyee Chow Hang-tung and former standing committee members Tang Ngok-kwan and Tsui Hon-kwong - were sentenced to four and a half months in prison in March 2023, which they had already served.

Five Court of Final Appeal judges - Chief Justice Andrew Cheung Kui-nung, permanent judges Roberto Ribeiro, Joseph Paul Fok and Johnson Lam Man-hon, and non-permanent judge Patrick Chan Siu-oi - unanimously ruled that the prosecution failed to prove the alliance was in fact a "foreign agent," a necessary element of the offense, and merely reasonably believing so is not enough.

"The courts below fell into error in holding that it was sufficient merely for the Commissioner of Police to assert that he had reasonable grounds to believe that [the alliance] was a foreign agent," the judges said in a written judgment.

The judges also said the prosecution used a heavily redacted investigation report and a recommendation to the police commissioner as bases to charge the trio, but criticized such an act as "ill-conceived and self-defeating" as the prosecution removed from evidence the only material relied upon for establishing the alliance were foreign agents.

"The prosecution had the burden of proving that [the alliance] was in fact a 'foreign agent' as an element of that offence. By redacting the only potential evidential basis for establishing such facts, the prosecution disabled itself from proving its case," they said.

"Moreover, non-disclosure of the redacted facts in any event deprived the appellants of a fair trial so that their convictions involved a miscarriage of justice and would in any event not have been permitted to stand."

The judges also ruled that the police could request documents that existed before the enactment of the national security law onJune30, 2020.

As long as the court was satisfied that the police had reasonable grounds to believe the information sought was necessary for the prevention and investigation of national security offenses, that information would have to be provided regardless of when it came into existence, they said.

In response, the government said it will carefully study the ruling and relevant legal principles.

"The government will also proactively review the SAR's experience in taking law enforcement actions in safeguarding national security," a government spokesman said. "We will also examine how the relevant legal system and enforcement mechanisms can be improved in order to be more effective in preventing, suppressing and punishing acts endangering national security, and continue to strengthen the law enforcement abilities in safeguarding national security."

ayra.wang@singtaonewscorp.com