A university student in Hong Kong will remain jailed for five years under the national security law, after a local court ruled that the Beijing-enacted legislation mandates a minimum sentence for those convicted of offences considered “serious.”
The ruling came as the Court of Appeal dismissed a challenge by Hong Kong Polytechnic University student Lui Sai-yu against his sentence. Lui was jailed for five years in April for inciting secession over selling weapons on Telegram and posting messages which advocated Hong Kong independence.
The 25-year-old was originally sentenced to three years and eight months behind bars after pleading guilty to the offence.
District Judge Amanda Woodcock ruled it was an offence of a “serious nature,” thus warranting imprisonment of not less than five years and no more than 10 years, and applied a one-third discount to the starting sentence of five-and-a-half years for Lui’s guilty plea.
However, Woodcock later raised Lui’s jail term to five years, after the prosecution said the court was bound by Article 21 of the security law to impose a minimum sentence of five years with no exceptional circumstances.
The appeal court on Wednesday sided with the sentencing judge and said she correctly categorised Lui’s case as a serious offence. The judges pointed to Lui’s role as one of two administrators of the Telegram channel in question, which had 1,040 subscribers and was said to contain secessionist posts, including phrases such as “Liberate Hong Kong, revolution of our times.”
The appeal panel also agreed with the sentencing starting point adopted by Woodcock.
“[T]here was no basis for the Court to disturb it as being manifestly excessive,” the judges said.
Minimum sentence or starting point
Lui’s appeal, which was the first to challenge the fixed-term sentencing provision of the national security law, concerned whether Article 21 of the legislation intended to set five years as a mandatory minimum penalty for serious offences, or a range of starting points between 10 years and five years.
The challenge also gave rise to questions over whether the list of mitigating circumstances listed in Article 33 (1) of the national security law were the only factors that a court may use in adjusting the penalty for a serious offence under Article 21.
The primary purpose of the Beijing-imposed legislation was to prevent, suppress and impose punishment for national security offences, the appeal panel said. Priority should be given to considerations of deterrence, retribution, denunciation and incapacitation, the judges said, adding not all mitigating circumstances were applicable to the sentencing of national security offences.
“Local sentencing laws on mitigation can apply only if they do not prejudice the penological considerations… local sentencing laws on mitigation can apply only if they do not compromise the primary purpose,” the court ruled.
The judges went on to say that imprisonment was listed as the only punishment option for a serious offence under Article 21, which reflected how the drafter of the law deemed the gravity of the offences.
“Viewed purposively, the minimum of five years is mandatory,” the judges said.
The court explained that Article 33(1) gives the sentencing court three options, including imposing a lighter penalty within the applicable tier, reducing the penalty from the upper tier to the lower tier and exempting penalty.
Whether the court should impose a more lenient punishment or lower the punishment would depend on the weight of the mitigation, the judges said. In Lui’s case, which involved a serious offence under Article 21, the court may impose a lighter penalty within the upper and lower limits, but the final prison term must be at least five years.
“For serious offences, whatever discount the court may give, the ultimate sentence cannot go below the mandatory minimum of five years’ imprisonment,” the court ruled.
Similarly, the sentencing court may take into account a guilty plea and other mitigating factors commonly recognised under the common law to mete out a lighter sentence, but the final jail term must stay within the applicable range.
Wednesday’s ruling is expected to have far-reaching implications on other ongoing national security cases. A defence counsel in the high-profile subversion case involving 47 pro-democracy figures told the court in September that her mitigation plea for her client who pleaded guilty may also make reference to legal arguments discussed in Lui’s case.
During the appeal hearing last month, the Department of Justice tried to rely on the mainland Chinese criminal code and a translated copy of a book on how to understand and apply the criminal code to understand what was meant by “lighter” punishment and “reduced” punishment.
The DoJ’s attempt was challenged by the panel, which said the criminal code was a “foreign law” that could not be directly used to interpret the provisions of Hong Kong’s national security law.
The appeal panel on Wednesday said while mainland Chinese laws “may in principle inform the construction of the NSL,” which particular provision would be relevant and the extent of its relevance would depend on individual cases before the court.
“For the present case, the need to refer to mainland sentencing law for construing NSL 21 and NSL 33(1) did not arise,” the panel said.