Source: Hong Kong Government special administrative region
The Court of Appeal of the High Court today (February 23) delivered its judgment on the appeals in a case of “conspiracy to commit subversion”, dismissing the appeals against conviction or sentence lodged by 12 defendants. Furthermore, with regard to one defendant against whom the evidence was insufficient for the trial court to be sure of his participation in the conspiracy offence, the Court of Appeal upheld the trial court’s verdict.
The Court of Appeal, in its judgment on the appeals in this case, rejected each of the grounds of appeal against conviction or sentence raised by the respective defendants. With regard to the appeals against conviction, the Court of Appeal noted that the relevant provisions of the Basic Law establish an executive-led system headed by the Chief Executive (CE), recognises that the CE, the Government, the Legislative Council (LegCo), and the Judiciary have different constitutional roles. Interaction and co-ordination between them is inevitable in areas where both the executive and legislative authority are required. As seen from the budgetary process, examining the merits of a budget by reference to fiscal considerations to see if it warrants approval must form the core of the LegCo’s powers and functions under Article 73(2) of the Basic Law. The LegCo must exercise its powers and functions in accordance with, and not in contravention of, the provisions of the Basic Law. In particular, it cannot act in contravention of the fundamental provisions of the Basic Law which establish the constitutional order in the Hong Kong Special Administrative Region (HKSAR), and the LegCo members cannot contravene the constitutional duty to uphold the constitutional order in the HKSAR under the LegCo Oath. In this case, as envisaged and publicised by the first defendant Tai Yiu-ting and known to any participant who chose to join it, the “Project 35+” was a “constitutional mass destruction weapon” aiming to compel the CE to resign, to paralyse the Government and to force the Central People’s Government to declare an end to the “one country, two systems” policy, which constituted an unlawful means of subverting the constitutional order of the HKSAR. Pursuing that aim in the pretext of examining budgets necessarily amounted to a breach of a LegCo member’s duty to uphold the constitutional order in the HKSAR. The defendants agreed to join the “Project 35+” and participate in the relevant course of conduct with the intent to achieve the subversive consequences, and therefore constituted the offence of “conspiracy to commit subversion”.