My Take | Ruling offers reassurance despite confirming minimum sentences

A rare national security ruling by Hong Kong’s top court last week might, at first glance, appear to lend weight to the idea that the city’s judiciary kowtows to the government in such cases.

The judges upheld a five-year jail term for student Lui Sai-yu, for inciting secession. They confirmed the national security law requires a minimum five-year sentence in serious cases of this kind.

But the court also rejected two significant and troubling findings made by the Court of Appeal in the same case in November. To that extent, the judgment offers some reassurance.

The first concerned the ability of judges in national security cases to apply well-established sentencing principles, notably the potential for mitigation to lower the penalty imposed. The Court of Appeal had emphasised the “primary purpose” of the national security law was to prevent, suppress and impose punishment for the crimes it covers. This, it said, meant that not all of the usual mitigating factors considered by judges would be applicable.

But the top court disagreed. The Court of Appeal had cited classic principles such as deterrence, retribution and denunciation while failing to mention rehabilitation. The Court of Final Appeal said this was “a glaring omission.” It pointed out that in “minor” cases of incitement, mitigating factors such as youth might lead to a non-custodial sentence.

Lui’s case was considered serious, so little weight was given to his mitigation. The student had posted messages on an instant messaging channel calling for Hong Kong independence and inciting violence in the wake of civil unrest in 2019.

The judge at his trial began with a sentence of five-and-a-half years’ jail and initially reduced it by the usual third to give Lui credit for pleading guilty. The final penalty, however, was five years, to comply with the national security law’s minimum.