A Hong Kong protester has filed an application to appeal his sentence under the national security law, claiming that the punishment was too severe for the offence.

Ma Chun-man, nicknamed “Captain America 2.0” for carrying a superhero shield during the 2019 protests, was sentenced to five years and nine months in prison last November after being convicted of inciting secession by District Court Judge Stanley Chan. He was the second person to be sentenced under the national security law.

high court
High Court. Photo: Candice Chau/HKFP.

Ma, represented by senior counsel Edwin Choy, appeared in front of Chief Judge of the High Court Jeremy Poon and Justices of Appeal Derek Pang and Anthea Pang at the Court of Appeal on Tuesday after filing a leave to appeal against his sentence.

Ma was found guilty of inciting secession over chanting slogans and making speeches calling for Hong Kong’s independence on at least 20 public occasions, and via social media, between August and November 2020.

Choy argued that Chan’s classification of the seriousness of Ma’s case was inaccurate, and said that the court should consider “objective elements” when assessing the severity of Ma’s case.

According to Article 21 of the national security law, if the circumstances of an offence were found to be of “a serious nature,” the offender would face a fixed-term imprisonment of no less than five years, but not more than seven years. If the circumstances were found to be of “a minor nature” the offender would face less than five years in prison, short-term detention or “restriction.”

Choy argued that Ma’s sentence should be closer to five years, and that the district court judge had not considered the impact of Ma’s slogan chanting when handing down the sentence.

edwin choy
Edwin Choy.

Choy said that while Ma chanted slogans on 20 occasions – including calls for Hongkongers to “build a nation” – many of the expressions were commonly used in other protests, and some were “vague.”

Choy also argued that “objectively, not many people echoed Ma’s slogan chanting,” and that it could not be said that the offence was of a serious nature.

Risk of reoffending

The judges, in turn, raised concerns over Ma’s risk of reoffending. Poon said that Ma committed part of the offence while out on bail.

Representative of the Department of Justice, Acting Deputy Director of Public Prosecutions (Special Duties) Anthony Chau, said that while there was no evidence that Ma used violence, his words still mentioned calls to use force to reach the goal of secession.

Chau also argued that Ma’s mitigation letter showed he had “no remorse at all,“ and “clearly said that he would continue to endanger national security.”

facebook app smartphone social media
Photo: Pixabay, via Pexels.

Apart from chanting slogans, Ma also used online platforms including Facebook to urge people to use violence, or to spread the message to different schools, which showed the serious nature of the case, Chau said.

While Choy argued that Ma operated “under delusion” that the national security law would not be enforced, Anthea Pang said that Ma was well aware of the national security law, citing Ma’s words that it “was not a piece of waste paper.”

Following the submissions from Choy and Chau, Poon said the court would need more time to reach a judgement and adjourned the case to September 5.

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Candice is a reporter at Hong Kong Free Press. She previously worked as a researcher at a local think tank. She has a BSocSc in Politics and International Relations from the University of Manchester and a MSc in International Political Economy from London School of Economics.