Hong Kong student jailed for inciting secession loses appeal against 5-year sentence under national security law
- Engineering undergraduate Lui Sai-yu, 25, was jailed in April for advocating the city’s independence and resistance against Communist Party on social media
- Legal debate centres on proper application of minimum sentences, introduced into common law system by Beijing through security legislation
The Court of Appeal on Wednesday held in a landmark ruling that judges could not impose sentences below the minimum stipulated in the national security law for serious crimes no matter how much the offender deserved a lesser penalty, except in very limited circumstances.
Chief Judge of the High Court Jeremy Poon Shiu-chor said the national security law was enacted with the primary objective of penalising acts endangering the country’s safety as quickly and effectively as possible, and that not all mitigating factors were applicable. Only those that did not undermine the expressed intention of the new law were permissible, he added.
Student accused of weapons offences charged under Hong Kong security law
Separately, the judge, who earlier questioned the use of legal texts in mainland China in deciphering the Beijing-imposed legislation, said local courts could indeed rely on the doctrines adopted by authorities north of the border in interpreting the security law in an apparent change of stance.
The court debate centred on the proper application of minimum sentences, which were introduced into Hong Kong’s common law system by Beijing through the national security legislation.
District Court judge Amanda Woodcock, who is among the few jurists approved by the city’s leader to oversee national security proceedings, initially imposed a prison term of 44 months after cutting a third off a starting point of 5½ years.
The reduction was in line with the Court of Appeal’s sentencing guidelines set in 2016, whereby an offender could receive up to one-third remission on the grounds of a timely guilty plea.
Serious national security crimes ‘must carry minimum jail term’ in Hong Kong
But Woodcock revised her sentence at the request of prosecutors after acknowledging she could only trim the defendant’s term by six months at the most as the case involved a serious incitement offence.
Article 21 of the national security law states that anyone who incites secession “shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years” if the offence is of a serious nature.
Other national security offences contain similar sentencing requirements. For instance, a minimum jail term of 10 years is applicable to a “principal offender” or one “who commits an offence of a grave nature” for the crime of secession.
In Wednesday’s 46-page verdict, Poon said the new legislation required “strict and full application” of its terms to achieve its overarching aim of effectively preventing, suppressing and imposing punishment for offences of national interest.
“Applying the imperative to the penalty regimes in the [national security law], priority should be given to the penological considerations of deterrence, retribution, denunciation and incapacitation, this is, putting out of the power of the offender to commit further offences,” he wrote.
Local sentencing laws on mitigation could apply only if they did not compromise the primary purpose of the new legal regime, the chief judge said.
The only exception, Poon said, was if the accused satisfied any of the three conditions under Article 33 of the national security law.
The provision states an offender may receive a “reduced” penalty only if he or she “voluntarily discontinues the commission of the offence” and “effectively forestalls its consequences”, “voluntarily surrenders himself or herself” and be honest to law enforcement, or informs law enforcement on other criminals.
Other mitigating factors, such as guilty pleas, could only constitute grounds for a “lighter” penalty, which must still be within the sentencing range as categorised by the seriousness of the offence concerned, the judge said.
On a separate note, the judge took a step back from his earlier criticisms against prosecutors’ call to take reference from legal doctrines in mainland China to interpret the Beijing-imposed legislation.
Poon in October said the move would violate established principles of interpreting the security legislation by applying common law, as well as the city’s “one country, two systems” governing principle.
But in the judgment, Poon said he would “recast to better express” the court’s position.
“Given the special status of the [national security law] as a national law applied to the [Hong Kong Special Administrative Region], regard may properly be had to the relevant mainland law in aid of its construction,” the judge wrote.
That said, the court found no need to consult the mainland penal code in the present case as it could resolve the issues at hand without relying on the Chinese legal text.
Wednesday’s ruling will set the bar for sentencing in national security cases to come, including for two of seven members of a pro-independence group awaiting punishment for instigating a “revolution” to overthrow the local and state governments.
The interpretation will also affect a number of opposition politicians and activists, who have indicated they will plead guilty to subversion charges over their roles in an unofficial legislative primary election in 2020.
