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Lawyers for a Tiananmen vigil activist have begun submissions seeking an early acquittal from the subversion charge, arguing that prosecutors misinterpreted China’s constitution and presented a flawed case.
The Tiananmen vigil in Victoria Park on June 4, 2018. Albert Ho (second from left), Chow Hang-tung (third from left), and Lee Cheuk-yan (third from right) are photographed on stage. File photo: Kris Cheng/HKFP.Barrister Erik Shum, representing Lee Cheuk-yan, argued on Monday that prosecutors erred in saying that there are no “lawful means” to call for an end to the Chinese Communist Party’s (CCP) rule.
Lee is one of three former leaders of the now-disbanded Hong Kong Alliance in Support of Patriotic Democratic Movements of China accused of “inciting subversion,” an offence that carries a maximum penalty of 10 years in jail.
For decades, the Alliance organised candlelight vigils in Hong Kong commemorating the deadly 1989 Tiananmen crackdown in Beijing, where hundreds, perhaps thousands, were killed as troops dispersed pro-democracy demonstrators in and around Tiananmen Square.
The case revolves around the Alliance’s key slogan calling for “an end to one-party rule” in China, which prosecutors allege amounts to a breach of the country’s constitution and incitement to subversion.
Lee and activist Chow Hang-tung pleaded not guilty, while the third defendant, solicitor Albert Ho, pleaded guilty when the trial opened in January.
Lee and activist Chow Hang-tung returned to the West Kowloon Law Courts on Monday after the proceedings were adjourned in early February when the prosecution closed its case.
‘Never a call for action’
“If there exists a lawful method to end CCP’s leadership, then the prosecution will lose its entire basis,” Shum told the court in Cantonese.
He cited Articles 62 and 64 of the Chinese constitution, which stipulate the mechanism by which the top decision-making body, the National People’s Congress, can amend the constitution.
While the Alliance had never explicitly called for an amendment, Shum said the group also did not outline an action plan for ending one-party rule. “It was merely a slogan and never a call for action,” he said.
From left: Lee Cheuk-yan, Albert Ho, Chow Hang-tung. Photos: HKFP.The Alliance’s slogan should be protected under Hong Kong’s freedom of expression and political rights, he added.
Shum also argued that the court must address whether China’s constitution is applicable to Hong Kong, which operates a separate legal system from the mainland under the “One Country, Two Systems” framework.
Under the framework, China’s law would only apply to Hong Kong under specific circumstances, such as being added to Annex III of the Basic Law, the city’s mini-constitution, he said.
Shum added that the court must interpret the constitution literally and rely on testimony from a constitutional expert, which the prosecution had not provided.
Co-conspirator rule
In response, prosecutor Ned Lai argued China’s constitution does not allow for the undermining of the CCP’s rule, which is stipulated as the “defining feature” of the country’s socialist system following an amendment in 2018.
The Alliance had never called for a constitutional amendment in making its political demands, Lai added, arguing that the call to end one-party rule must be unlawful.
Earlier on Monday, the three-judge panel presiding over the trial ruled that the prosecution can apply the “co-conspirator rule,” allowing some statements made by one defendant to be used as evidence against others in the case.
Chow, a barrister representing herself, is expected to begin her submission for an early acquittal on Tuesday.
For over three decades, the Alliance held annual vigils in Victoria Park to commemorate the 1989 crackdown, calling for democracy and an end to one-party rule. Authorities banned the gathering for the first time in 2020, citing Covid-19 restrictions. The following year, the Alliance disbanded after authorities banned the vigil again and arrested its leadership.
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