The Hong Kong Court of First Instance (CFI) recently convicted 14 out of 16 democracy activists on charges of conspiring to commit subversion under Article 22(3) of the China-imposed National Security Law. The case revolved around the activists’ actions to subvert state power by seeking a controlling majority in the 2020 Legislative Council election, with the aim of forcing then-Chief Executive Carrie Lam to resign.
Prosecutors argued that the defendants intended to veto government budgets if they obtained a majority, thereby compelling Lam to address the “Five Demands Not One Less” protest slogan. The demands included repealing the extradition bill and Lam’s resignation, which would have forced the dissolution of the Legislative Council under Article 50 and Lam’s resignation under Article 52 of the Basic Law, respectively. Despite the enactment of the National Security Law on June 30, 2020, which criminalized such actions, the accused continued their efforts.
The defense countered that subversion requires the use or threat of force, but the court referenced HKSAR v. Tam Tak Chi, arguing modern sedition can occur through non-violent means. The court clarified that the term “unlawful” in Article 22 refers to the actus reus of the offense rather than proving the defendants had mens rea.
Interestingly, the court acquitted two activists, Lau Wai-chung and Lee Yue-shun, due to lack of clear intent to subvert state power. This judgment marked the first acquittals under the National Security Law, but the Department of Justice appealed these acquittals, invoking new provisions enacted in May 2023 that allow the prosecution to challenge judicial decisions in cases heard by professional judges. The government asserts this is necessary to prevent miscarriage of justice and to protect national security.
Further details can be found in the full report on JURIST.