A judge specially tasked with handling national security cases is to hold a hearing to decide whether to take on the sedition trial of Tam Tak-chi, even though the pro-democracy activist has not been charged under the new legislation.
The District Court announced the move on Wednesday following a request by the Department of Justice (DOJ).
Tam, vice-chairman of People Power, faces a total of 14 charges, including shouting allegedly seditious slogans, such as "Liberate Hong Kong, revolution of our times", and inciting others to do the same.
The DOJ said such words "clearly have a subversive meaning", alleging that Tam tried to "alter the constitutional order of Hong Kong". For this reason, it said, the case could fall into the ambit of the national security law.
It added that having a designated national security judge would not be unfair to Tam as these judges can also hear cases that are unrelated to the new law.
But defence barrister Philip Dykes said it was inconsistent for the prosecutors to make the request only after the case had been transferred to the District Court, warning that it would set a bad precedent if the court approved the application.
Handing down his ruling on Wednesday, Chief District Judge Justin Ko said he would leave it to a designated judge to decide if Tam’s case really is related to the national security law.
Ko said he agreed with the DOJ's reasoning that if a "normal" judge were to preside over Tam's trial, he or she may act beyond their legal authority and the matter could be subject to a judicial review.
He said it would not be ideal to leave a "blemish" on an important issue during early proceedings, which may later come back to haunt both sides.
Ko said a national security judge would hold a hearing on Thursday to decide whether to take on Tam's case.
The activist has been kept in custody since his arrest on September 6.
Critics have slammed the stipulation in the national security law which gave the chief executive the power to draw up a list of judges to handle national security cases, saying this has undermined the independence of the judiciary.
In July, Chief Justice Geoffrey Ma stressed that judges should only be appointed on the basis of judicial and professional qualities, and not politics.