Progress in the NSL47 case – at the expense of the defence

Progress in the NSL47 case – at the expense of the defence

Hardly any information is made public in the case of the NSL47. For those detained, there are restrictions on reporting bail proceedings. Those on bail are subject to stringent conditions: they can be arrested and detained again for so much as a post on social media.

The result: the #NSL47 have disappeared in plain sight. The public has no idea of the progress of the case against their own elected representatives.

We now have a hint from Esther Toh J’s judgment in Gary Fan’s High Court application for bail (HCCP 454/2021, 26 Apr 2022).

Judgment in HCCP 454/2021

This is the first time that we are hearing that a Summary of Facts has been prepared. For those who intend to plead guilty, the Summary of Facts forms the factual basis for conviction. It sets out definitively what acts constituted “conspiracy to commit subversion” in this case.

In other words, defendants have been held for over one year without knowing the charges against them. They were given allegations at the first mention, and in Sept 2021 over 100,000 pages – none of which served to clarify how a democratic primary could be subversive.

Bundles of documents served on each defendant. Photo from Owen Chow’s Instagram

Given that prosecution only got their case together months after the NSL47 were taken into detention – one must ask what purpose such prolonged pre-trial detention has, if not to punish the accused, increase the difficulty of preparing a defence, and remove them from public view.

Toh J comments that the case should go to trial expeditiously – but at the expense of the defence. While the prosecution has dragged their feet on preparing their case, Toh J now says that a deadline should be imposed on the defendants to agree to the Summary of Facts.

Defendants will now be under immense pressure to agree to the Summary of Facts as is without negotiation with the prosecution. The typical discount for pleading guilty is 1/3 off the starting point, but this discount could be reduced by any alleged “delay” by the defence.

The NSL sets out sentencing starting points for subversion: principal offender gets 10 years to life; active participation 3-10 yrs; other participants max 3 yrs. The 47 have no idea what starting point is applicable. To date, NSL cases have a 100% conviction rate.

In other words: the prosecution has been allowed every indulgence, while the defence is pressured by operation of law to agree to the claims against them. More than any other case, the NSL47 illustrates how the Hong Kong judicial system has collapsed wholesale.

The prosecution has been allowed every indulgence, while the defence is pressured by operation of law to agree to the claims against them.


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