Tong Ying-kit rode his motorbike on July 1, 2020. (Captured from footage of Cable News)

Here are the takeaways from Day 9 of the trial:

  • Defendant Tong Ying-kit did not seriously mean to incite anyone, and his collision with police was not deliberate, his lawyers said.
  • Judges asked whether Tong’s actions matched “serious violence” or “dangerous activities” as stated in national security laws.
  • Tong knowingly defied national security legislation and used his motorcycle as a lethal weapon, prosecutors said.
  • The court decided there was no need to further investigate evidence missing from Tong’s wallet.

What Hongkonger Tong Ying-kit did last year when he drove a motorcycle into police was “not the act of a terrorist”, because he had slowed down and tried to avoid hitting the officers, his lawyer said in court on Thursday.

The defence also argued the evidence was insufficient to show that Tong, 24, was trying to incite anyone to break the law when he flew a flag with the protest slogan “Liberate Hong Kong, Revolution of Our Times” attached to his vehicle on July 1, 2020.

“[Tong] was just driving along… It cannot sensibly be said that he was telling people, just by what the words meant, ‘What you must do is secede from China’,” said lead defence lawyer Clive Grossman SC.

Grossman addressed the High Court after prosecutors finished presenting their case on Thursday, the ninth day of Hong Kong’s first national security trial. The three judges Anthea Pang, Esther Toh and Wilson Chan will decide the next day whether the prosecution’s evidence is strong enough for the hearing to continue for the remaining six days scheduled.

Prosecutors’ interpretation of the slogan ‘doesn’t make sense’, the defence says.

Thursday’s court session saw the defence make a “no case” submission and shoot down each charge in turn. On the offence of inciting secession, Grossman said the prosecution had failed to show any specific intent on Tong’s part. The defendant was only driving along with the flag hoisted on his vehicle, he said.

The protest slogan did not say “secede from China” and its meaning was not specific, Grossman noted. He said history professor Lau Chi-pang, the prosecution’s expert witness, had admitted in his testimony that the Chinese term for “liberate” carried multiple meanings.

Grossman also cast doubt on Lau’s earlier assertion that the meaning of the words in the slogan had stayed the same for more than a millennium. “With great respect, it simply doesn't make sense,” he said.

Flying a protest flag did not amount to a serious intent to incite others, he went on. “It doesn’t mean, ‘What I want you to do is to interpret this slogan to do something illegal’,” Grossman said. If the action fell short of incitement, then what Tong did was simply exercising his rights under the Basic Law, he added.

The lead prosecution and defence lawyers sparred over whether there was enough evidence to show the effect of the alleged incitement. Acting Deputy Director of Public Prosecutions Anthony Chau said onlookers “cheered and clapped” as Tong drove by, but Grossman said that did not count. 

In response, Chau made four points: Tong had committed the offences the day after Hong Kong’s national security law took effect; he displayed the flag across an extensive area of the city; he drove at high speed with a loud engine sound; and he ignored warnings from the police and charged through their checkpoints.

“[Tong] intended for the words on the flag to be communicated,” Chau said, citing the manner of the defendant’s driving. “He was acting in knowing defiance of the national security law.”

No terrorist would bring a first-aid kit and stop at a red light, the defence argues. 

Responding to the terrorism charge, Grossman said Tong was “deliberately avoiding” the police as he drove, instead of trying to hit them. Video evidence showed Tong stopped at a traffic light while on his way to Wan Chai, the lawyer said.

“Is this the behaviour of a terrorist?” Grossman asked. The court should also bear in mind Tong’s outfit and belongings, which consisted mostly of first-aid supplies and held nothing dangerous, he added.

“Can one say that [Tong] was deliberately avoiding the police, or was the police avoiding him?” the judge Toh asked.

“The evidence of the police was that, on each occasion, he could have driven into them but didn’t,” Grossman replied, referring to three police checkpoints Tong sped past before his eventual crash. 

Moments before the collision, a police officer had flung a shield at the motorcycle “exactly like he was serving in tennis”, which either hit Tong or distracted him, Grossman said. Tong was allegedly driving at around 20km/h and had put his hand on the brakes but could not stop in time, according to the defence. 

The police officers manning the checkpoints were “understandably angry” but their testimony was confusing, the lawyer continued. They were not seriously injured, because they had walked out of the hospital the day after, which meant Tong’s actions did not qualify as “serious violence” under the law, he added.

On this point, the bench expressed scepticism. The fact that the officers escaped serious injury merely meant Tong was lucky, Toh said. “It’s like a stabbing; it’s lucky the knife missed the artery, but it doesn’t diminish the seriousness of the attack.”

Judge Chan drew attention to provisions under the national security law, in which terrorism could mean a number of things, including “serious violence against a person” and “dangerous activities which seriously jeopardise public health, safety or security”.

“Just because [Tong] didn't run down policemen does not mean it was not a ‘dangerous activity’,” Chan said. “Even if he didn’t deliberately aim his motorcycle at police officers, his action to disregard police warnings to stop — couldn’t that also be a dangerous activity?”

Taking their cue from the judges, prosecutors stressed that Tong’s actions had seriously jeopardised public safety. Pedestrians were shocked by the collision and could have been hit, Chau said. “He was driving his motorcycle as a lethal weapon, ramming it into the police checkline — it must be serious violence.”

The judges will decide whether the prosecution has a prima facie case.

Government lawyers said Grossman was wrong to discuss the merits of the evidence, as that should be done at a later stage. The court only needed to determine whether the defence had a case to answer: the test was whether the prosecution’s case, taken at its strongest, would be enough to convict the defendant. If so, the defence could start to argue its case in earnest.

The three judges, who were handpicked by Hong Kong’s leader to hear national security cases, said they would rule on the matter on Friday morning. 

No need to spend time looking into the missing card, the court says.

At the start of the day, the judges dismissed the issue of a missing piece of evidence. The matter first came to light on Wednesday when lawyers discovered that an object — likely a card or piece of paper — bearing the “Liberate Hong Kong” slogan had disappeared from Tong’s wallet. 

Judge Chan said the prosecution’s plan to further investigate the missing item was unnecessary. If the prosecutors wanted to prove that Tong had knowledge of the slogan, it was enough for them to refer to video evidence; if they wanted to allege that Tong tampered with the card, they could not prove it beyond reasonable doubt, he said.

“It could have been lost accidentally at the scene, from the scene to the hospital, or at any time during his stay in his hospital,” Chan said. In any event, the evidence would have “little, if any, probative value” and calling more witnesses would derail the trial, he added.

All the parties agreed that no allegation of impropriety had been made against any of the lawyers, police or correctional officers.

By Holmes Chan

Day 1: Hong Kong’s first national security suspect Tong Ying-kit goes on trial

Day 2: Police fired pepper balls at Tong Ying-kit’s speeding motorbike, court hears

Day 3: Role of police arm shield in Tong Ying-kit crash under question in court

Day 4: ‘I had a feeling’ Tong Ying-kit meant to flee after crashing, says injured policeman

Day 5: Tong Ying-kit’s slogan is about ‘taking back Hong Kong from enemy’, professor tells court

Day 6: Slogan creator Edward Leung wanted to ‘build a nation for Hongkongers’, court told

Day 7: Trial debates Tong Ying-kit’s perception of ‘Liberate Hong Kong’ slogan

Day 8: Lawyers caught unawares as slogan evidence can’t be found in middle of hearing