Why Hong Kong’s new national security law includes mandatory minimum sentences

The introduction of minimum sentences for some offences under the national security law is unusual for Hong Kong, although these provisions exist in other jurisdictions for their deterrent effect
The inclusion of mitigating factors in the legislation will enable the courts to soften the impact of the mandatory sentences

Grenville Cross

Published: 6:00am, 8 Jul 2020

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A notable feature of the national security law is its use of minimum sentences for particular offences, which is new for Hong Kong. Although local laws prescribe maximum sentences, the courts have, with rare exceptions, enjoyed a wide discretion when sentencing offenders.

While, for example, adult offenders who commit murder face mandatory life imprisonment, and those guilty of unlawful possession of an offensive weapon in a public place face a term of imprisonment, which can be long or short, such sentences are very much the exception, but no longer.

In relation to subversion, for example, there are three penalty tiers under Article 22 of the national security law. Whereas a principal offender will face imprisonment for between 10 years and life, an active participant may be sentenced to between three and 10 years’ imprisonment, while a minor offender will be liable to a fixed term of not more than three years’ imprisonment or else to “short-term detention or restriction”, which leaves the door open to alternative sentences, such as community service, training centre or reformatory school.

Probably the closest thing the courts currently have in relation to tiered penalties arises in relation to certain road traffic offences, where the maximum sentence can be raised if the offence is committed in “circumstances of aggravation”, as defined.

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There are, moreover, offences which can result in a higher maximum sentence when the defendant is a repeat offender. Under the Gambling Ordinance, for example, there are three sentencing levels for someone convicted of unlawful gambling in a gambling establishment, with the maximum sentence rising from three months’ imprisonment and a fine of HK$10,000 on first conviction, to six months’ imprisonment and a fine of HK$20,000 on second conviction, and to nine months’ imprisonment and a fine of HK$30,000 on third conviction.

The reason mandatory sentencing has traditionally been avoided is because of the view that the courts should have a wide discretion in achieving a just outcome. This means they should be able to adjust the sentence upwards or downwards, depending on the aggravating and mitigating features of the case, and after having had regard to such things as the age of the offender, the criminal record, and the circumstances in which the crime about.

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However, mandatory minimum sentences are by no means uncommon in other jurisdictions, and are often seen as a powerful deterrent for particular crimes.

In Australia, for example, the Federal Parliament has just adopted a minimum sentence of six years’ imprisonment for sex offenders who abuse children overseas. In Canada, certain firearms offences are punishable with a minimum sentence of four years’ imprisonment.

In Japan, rapists face a minimum sentence of five years’ imprisonment, raised from three years in 2017. Until recently in Florida in the US, the minimum sentence for producing a firearm in the commission of a crime was 10 years’ imprisonment, rising to 20 years if a shot was fired, and to 25 years if somebody was shot.

Protesters hold signs at a rally for gun control at the Broward County Federal Courthouse in Fort Lauderdale, Florida, on February 17, 2018, after 17 people died and more than a dozen were wounded in a mass shooting at Marjory Stoneman Douglas High School in Parkland, Florida. Photo: AFP

Mitigation plays a role in sentencing, although the more serious the offence, the less its significance is likely to be. What constitutes mitigation has been a matter for the court to determine, and the precedent cases indicate which factors may be relevant.

What is highly unusual, however, is for a law to have inbuilt mitigatory factors, such as those contained in the national security law.

Article 33 indicates that a “lighter penalty may be imposed, or the penalty may be reduced, or, in the case of a minor offence, exempted”, if the defendant voluntarily withdraws from the crime during its commission and “effectively forestalls its consequences”, or voluntarily surrenders and confesses, or provides truthful information about others which leads to the solving of other criminal cases.

A police officer raises a new police flag warning protesters that they might be breaking the new national security law in Causeway Bay on July 1. Photo: Sam Tsang

Although these are already recognised mitigating factors, the effect of giving them legislative standing is to enable the courts to soften the impact of otherwise mandatory sentences, with the lesser sentence being a discretionary matter for the judge to decide.

The new offences are obviously seen as sufficiently serious to justify the use of minimum sentences, and the interests of deterrence will have been factored in. When used elsewhere, such sentences have enjoyed a measure of success.

Once the impact of the new sentences has been fully appreciated, they will hopefully make Hong Kong a safer place in which to live, and help to allay Beijing’s national security concerns.

Grenville Cross SC is a criminal justice analyst, and the co-author of Sentencing in Hong Kong

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