A Hong Kong student who was denied a jail term reduction under the national security law has been granted permission to appeal his five-year sentence at the city’s top court.

Court of Final Appeal
Court of Final Appeal. Photo: Kyle Lam/HKFP.

Lui Sai-yu, 26, appeared at the Court of Final Appeal on Tuesday morning. Wearing a grey argyle sweater over a white collared top, he was escorted into the dock by correctional officers as people in the public gallery waved to him.

The former Hong Kong Polytechnic University student was sentenced to five years in jail last April. He was accused of inciting secession, a crime under the Beijing-imposed national security law.

This marks the first time that an appeal against a national security sentencing has made its way to the city’s highest court. Last year, Ma Chun-man, the second person who was sentenced under the security law, saw his nearly six-year jail term reduced to five after winning an appeal at the Court of Appeal.

Lui was granted a certificate to apply for permission to appeal his sentence at the top court last month. The certificate is needed for appellants to seek a chance at an appeal before Court of Final Appeal judges.

National security
A national security billboard. Photo: Kelly Ho/HKFP.

Lui’s challenge at the Court of Final Appeal will be heard on August 9.

Offence of a ‘serious nature’

The ex-student was convicted of selling weapons on messaging app Telegram and posting pro-independence messages.

Lui’s appeal effort centres around the judge backpedalling on giving him a one-third jail term reduction despite his guilty plea. Normally, sentences are shortened by a third when a defendant pleads guilty to the offence.

While delivering Lui’s sentence at a lower court last April, District Court judge Amanda Woodcock said his offence was of a “serious nature,” therefore warranting a sentence of between five and 10 years per the text of the national security law.

Telegram. File photo: Kelly Ho/HKFP.

She initially took a starting point of five years and six months, and, considering his plea, took one-third off the jail term to arrive at three years and eight months.

The prosecution then argued that as the offence was “serious,” the sentence should not fall below the minimum of five years. Woodcock walked back the original sentence reduction to deliver a jail term of five years.

Points of law

Handing down the permission on Tuesday, judge Joseph Fok said he would permit the appeal, which will discuss two points of law.

The first examines what the “proper construction of the sentencing provision” is in Article 21 of the security law, which states that if the offence committed is “of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than 10 years.” The court is expected to probe if the stipulation of “not less than five years’ fixed term imprisonment” is mandatory.

Yuen Long July 21, 2020 Police national security
Police raise a purple warning banner to caution against violations of the national security law. Photo: Kelly Ho/HKFP.

The second point of law identified involved Article 33 of the security legislation, which lays out three situations in which a lighter penalty may be imposed. The three situations are if the person had voluntarily halted the committing of the offence, voluntarily surrendered, or if they report an offence committed by somebody else.

The court is to consider whether these three conditions were “exhaustive” and if it was “permissible” to reduce the sentence on account of other mitigating factors.

Lui was the fourth person to be sentenced under Beijing’s national security law, which bypassed local legislature and came into effect in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts.

The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.

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Hillary has an interest in social issues and politics. Previously, she reported on Asia broadly - including on Hong Kong's 2019 protests - for TIME Magazine and covered local news at Coconuts Hong Kong.