Opinion | Subversion verdicts: Justice prevails while Trevelyan whines

By Grenville Cross

On May 30, a 3-judge panel of the Court of First Instance delivered its verdicts in the trial of the 16 defendants accused of conspiring to subvert state power. Whereas 14 were convicted, two were acquitted. A further 31 defendants had earlier pleaded guilty, and the sentencing of the 45 offenders has been adjourned to June 25.

The Court concluded that those it convicted had joined an illegal scheme, together with their 31 confederates, to secure a majority in the Legislative Council and wreak havoc. Once elected, they planned to indiscriminately veto all government funding requests and block the budget, which would paralyze the government. This would force the chief executive to resign and create a constitutional crisis, undoubtedly precipitating a confrontation with the Central Authorities.

If the scheme had succeeded, it would have imperiled the "one country, two systems" governing policy (OCTS), as the plotters must have realized. As the rioters had not succeeded in destroying OCTS during the insurrection in 2019, when mobs trashed the Legislative Council, the plotters hoped to gain control of the Council and wreck OCTS from within. If they had not been stopped in their tracks by the National Security Law for Hong Kong (NSL), which was enacted just as their plotting was reaching a climax, they could have ruined OCTS and, with it, the aspirations of the Chinese people.

Just as it did during the insurrection, Hong Kong had a very narrow escape from those who plotted its downfall. The plotters were not engaged in legitimate political activity, but in a dastardly attempt to subvert the body politic. Their agenda flew in the face of the obligations of good governance imposed on legislators by the Basic Law (Art.74). It was also contemptuous of its requirement that elected legislators swear to uphold the Basic Law and bear allegiance to the Hong Kong Special Administrative Region (Art.104).

If their plot would benefit anybody, it would be China's antagonists. The plotters would have liked nothing more than seeing the OCTS fail, knowing how detrimental this would be to the country's progress. Now that the plotters are facing their just deserts, their overseas supporters are wringing their hands in grief, if not despair.

The convictions have been welcomed by everybody who deplores a plot that could have destroyed Hong Kong's way of life, and seen the demise of OCTS. The chief secretary, Eric Chan Kwok-ki, spoke for many when he pointed out how the verdicts illustrated that national security risks truly exist and that the plotters had hoped to "disrupt Hong Kong's constitutional order." They intended "to use Hong Kong as a base to inhibit the country's development," which was spot-on. Only China's geopolitical rivals stood to benefit from what the plotters hoped to achieve.

If offenders have been lawfully imprisoned, either because they pleaded guilty or were convicted after trial, they have to serve their sentences, and arbitrary release by the prison authorities is impossible

To their credit, 31 of the defendants, including the mastermind, Benny Tai Yiu-ting, realized the game was up. By pleading guilty, they have shown remorse and will be given credit for this at the sentencing stage. There will, however, be no sentencing discounts for the 14 defendants who claimed they were not guilty, and necessitated a 118-day trial.

However, not everybody was relieved to see the plotters being held to account. The UK's deputy foreign secretary, Anne-Marie Trevelyan, who works under Lord (David) Cameron and is responsible for the Indo-Pacific, weighed in with an astonishing accusation. She said the case demonstrated that the Hong Kong authorities were using the NSL "to stifle opposition and criminalize political dissent." Although the plotters endangered the very survival of OCTS, she claimed they were simply exercising "their right to freedom of speech, of assembly and of political participation."

This was risible and once again demonstrated the animus the Conservative government, of which Trevelyan is part, bears towards Hong Kong. Just as they failed to support the city as it struggled to survive during the insurrection of 2019-20, so they are now trying to harm it with malicious slurs as the wheels of justice turn. It is unthinkable that the UK Consul General in Hong Kong, Brian Davidson, would ever have signed off on a foreign office briefing paper that contained such trash. The only conclusion, therefore, must be that Trevelyan now listens instead to the likes of Hong Kong Watch, the anti-China hate machine operated by the serial fantasist, Benedict Rogers (and whose patron is the ex-governor, Lord (Chris) Patten, the veteran Sinophobe who spends his dotage slagging off China to anybody with time on their hands).

Indeed, Trevelyan's tirade went even further. She said "We call on the Hong Kong authorities to end NSL prosecutions and release all individuals charged under it." This was nonsensical, as the foreign office's legal department could have told her. Even if they were so minded, there is no way the "authorities" could simply "release" people subject to legal processes. The judges themselves have no authority to release people charged with serious crimes, as they are required to try the cases listed before them according to law (as in the UK).

If offenders have been lawfully imprisoned, either because they pleaded guilty or were convicted after trial, they have to serve their sentences, and arbitrary release by the prison authorities is impossible. If they are suspected of national security offenses, they must expect to be prosecuted, evidence permitting (as in the UK). As the Basic Law provides that criminal prosecutions are independently controlled by the Department of Justice "free from any interference" (Art.63), there is no legal way by which it could be told by the authorities "to end NSL prosecutions," as Davidson, if asked, could have explained to Trevelyan.

Although Trevelyan called for the mass release "of individuals charged under it" (the NSL), she failed to explain how this could legally be achieved. This was unsurprising, as there is no mechanism, and all she was interested in was a soundbite to titillate the anti-China lobby. If she wanted everybody released, this would presumably include Tong Ying-kit, the fanatic who was convicted of terrorist activity and sentenced to 6 years and 8 months' imprisonment after he drove his motorbike into three police officers, causing injury. Her call was gibberish, and cannot have been cleared by her legal department.

At a time when the UK is using its National Security Act 2023 to prosecute the office manager of the Hong Kong Economic and Trade Office in London, Bill Yuen Chung-biu, and another UK-based Chinese, Peter Wai Chi-leung, for allegedly spying for Hong Kong, it ill-behoves Trevelyan to dish the dirt on Hong Kong.

Not surprisingly, the arrests of Yuen and Wai have delighted Hong Kong Watch and others in the UK's strident anti-China lobby (and, when they are happy, Trevelyan and Cameron are also happy). The allegations appear to amount to little more than the monitoring of people, including criminal fugitives and convicted felons, who may be using their British base to try to harm Hong Kong from afar (what Trevelyan's boss, Lord Cameron, calls exercising "freedom of speech"). It will be for the English courts to decide if the case has any merit, free from any interference, just as it is for the Hong Kong courts to adjudicate upon the city's national security cases, free of any interference from the likes of Trevelyan.

If the opinion polls are to be believed, the Conservative government is facing oblivion on July 4, and Trevelyan, like Cameron, will be out of a job. Few will lament her departure, and her successor could hardly be any worse. It must be hoped that whoever takes over will eschew propaganda, listen more to Davidson, and make statements that are grounded in reality.

The author is a senior counsel and law professor, and was previously the director of public prosecutions of the Hong Kong SAR.

The article was published first in China Daily.