NSL Trial of 47 Democrats: 5 Developments This Week (13-17 Feb 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 second week of the trial of the 47 democrats: 

Development 1: Evidence emerges of paid court attendees

Since the first week of the trial, concerns were raised that the large number of people queuing to enter the trial were paid to attend. When journalists spoke to people in line, many did not know what trial they were queuing for and evaded questions. Later on, reporters saw a group of people handling money at a nearby restaurant after they left the court.

This week, reporters from InMedia answered an online job ad calling for people to queue outside the court, to collect a ticket for the hearing and do nothing else. They revealed that they were each paid HK$800 to spend the night outside the West Kowloon Law Courts Building so that they would be the first to enter the courtroom once it opened. They also reported that arrangements appeared to be coordinated by a man with links to a pro-establishment group.

This is evidence that the pro-establishment camp in Hong Kong is using Beijing’s tactics to prevent people from accessing and reporting on a trial, as is often done for trials of human rights defenders in the Mainland.

Development 2: Former legislator Au Nok-hin testifies against Benny Tai

Former legislator Au Nok-hin, who has pleaded guilty to conspiracy to commit subversion, began his testimony as the first prosecution witness. 

Au told the court that he first discussed the primaries with human rights law professor Benny Tai at a meal gathering in late January 2020. He said that they discussed the need to establish a coordination mechanism within the pro-democracy camp in order to maximize its chance of winning more seats in the legislature. It came after they saw a landslide victory against the pro-establishment camp in the 2019 District Council election held during the anti-extradition bill protest movement. 

Au claimed that Tai described majority control of the legislature as a “constitutional weapon of mass destruction” during the meal gathering and said that the pro-democracy camp would therefore have “more bargaining power” with the government. 

Development 3: Former legislator Au Nok-hin testifies on election forums

On Thursday, Au testified that he was in charge of holding election forums, and the procedures were formulated by him, but he did not remember which forums he attended.

The prosecution broadcast the film of election forums that were held in preparation for the unofficial primaries. Au confessed that he had attended most of the forums and identified participants in the film one by one, in court.

Development 4: Defendants placed in different rooms

Although the co-defendants normally sit in the dock of the main courtroom alongside their co-defendants on trial, nine defendants who pleaded guilty earlier were placed in other courtrooms to watch the live broadcast of the hearing. This means that they could see an overview of the main courtroom including the judges’ bench, the counsels’ desks and the dock, but not the witness stand.

The people affected were activists Joshua Wong and Lester Shum, ex-lawmakers Eddie Chu and Andrew Wan, ex-unionist Carol Ng, former district councilors Tiffany Yuen, Fergus Leung and Roy Tam and founder of now-defunct online media DB Channel Frankie Fung. 

In response to concerns raised about this, the Judiciary said that trial judges or judiciary staff had the power to make specific directions relating to case management or other matters in court which may affect the execution of judicial work. The co-defendants could sit in the courtroom if they receive approval from the trial judge.

Development 5: HK delegates state that National Security Law needs ‘flexibility’

At the UN’s review of China (including Hong Kong)’s compliance with the International Covenant on Social, Cultural, and Economic Rights in Geneva this week, UN experts raised multiple concerns regarding Hong Kong’s National Security Law. 

Specifically, they highlighted that “national security” was unclear and raised concerns that this, and the National Security Law itself, could be applied “arbitrarily”. In response, a Hong Kong delegate said many countries did not provide a definition for national security in their relevant legislation either, as threats to national security will “change with circumstances.” Therefore, the law needs to be flexible.

This is a sinister sign for the trial of the 47 democrats that is ongoing in Hong Kong, as the court will be able to flexibly define and apply “national security” to ensure that the defendants receive maximum punishment.