The court today (Aug. 28) continued to hear the pleas of the fifth batch of defendants involved in the "35+" subversion, including Ng Kin-wai, Eddie Chu, Sam Cheung, Prince Wong, Andrew Wan, Kwok Ka-ki, Carol Ng and Tam Hoi-bong, who participated in the New Territories West "primary election."
The court stated that whether the subversion intent succeeded or not was not a factor in weighing the sentence. The absence of violence did not equate to lesser guilt.
The court handled the mitigation from Carol Ng, Tam Hoi-pong and Ricky Or. SC Gladys Li, who represented Carol Ng, stated that those who won in the manipulated selection process were already disqualified by electoral officers. It reflected that the "35+" subversion intent would never achieved.
The court rebutted that even though they were disqualified, there were candidates from "Plan B" to substitute the vacancies and Benny Tai also believed that the plan would succeed. It also emphasized that whether the subversion intent succeeded or not was not a sentencing factor. The court also gave an example that if someone intended to rob a bank, the court was not required to assess its success rate in giving out the sentence.
The court quoted another example, if someone wanted to poison another person to death, but the dosage was insufficient due to his lack of chemical knowledge. Thus, the murder plot eventually failed. The intent was absolutely not anything less than an attempt to murder. SC Li considered that the"35+" subversion intent did not involve violence or threat to use the same. Therefore, it was not the most serious type of case in the National Security Law of Hong Kong (NSL). However, the court was of the view that the absence of violence did not mean the case nature not being serious. The court pointed out the great importance of safeguarding national security and thus the sentence should carry a deterrent effect.
SC Li expressed that in referencing the three-tier penalty banding, the court shall not set the sentencing point too high. She considered that Carol Ng had not won the manipulated selection process and that she was only playing a passive role and having comparatively less influence over others. Thus, Carol Ng should be regarded as an "active participant" or "secondary or third category participant".
Counsel David Ma, who represented Tam Hoi-pong, stated that Tam should be regarded as a"secondary or third category participant". It was because Tam received the lowest votes in the NT West manipulated selection process and he had a minimal role. The court queried Ma if he was correlating the number of votes to the level of sentencing. Ma clarified that he was not, and then revealed that Tam was suffering from health problems including skin infections for the court to consider in reducing his sentence.
However, the court found Tam's health problem was not serious after consulting his medical reports.
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