Harsh Jail Terms of Hong Kong Student Upheld As Court of Final Appeal Rules National Security Law Overrides Common Law

PolyU student’s guilty pleas not enough to reduce his jail terms, Court of Final Appeal grants the National Security Law a free ride

Lui Sai-yu's appeal against his sentence was rejected. Profile picture, Adrian Yu/The Epoch Times

The first final appeal case against Hong Kong’s tiered sentencing system under the National Security Law (NSL) was decided on Aug. 22. Lui Sai-yu, a student at Hong Kong Polytechnic University (HKPolyU), was charged with “inciting secession” and sentenced to 2022. Although he pleaded guilty, the Court of Final Appeal (CFA) ruled that he was not entitled to the customary “1/3 reduction in sentence for pleading guilty.” He was ultimately sentenced to 5 years in prison.

This verdict is expected to set a threshold for sentencing in cases under Hong Kong’s national security laws. Some legal community members believe that the case has far-reaching implications, and the uncertainty of the court’s decision to commute the sentence is tantamount to spreading fear and creating a chilling effect, which is highly detrimental to Hong Kong.

Guilty Plea Not Enough for Granting Reduced Jail Terms

When the case was heard earlier, District Court Judge Amanda Woodcock ruled that the case was “minor” and the starting point for sentencing was five and a half years’ imprisonment. And by considering his guilty plea, she took a third off and came to three years and eight months. However, the prosecution stated that the sentence in this case is governed by the minimum sentence to be five years for serious crimes as stipulated in the Hong Kong National Security Law. In the end, the judge changed the sentence to five years imprisonment.

Mr. Lui then appealed against the sentence but was rejected by the High Court. At the time, the Appeal Court stated that Hong Kong’s local laws must run in parallel with the NSL with the goal of maintaining national security. If there is any inconsistency, the National Security Law shall take precedence. Later, Mr. Lui filed a final appeal, which was rejected by the Court of Final Appeal on Aug. 22. The CFA stated that Article 33 of the Hong Kong National Security Law which spells out the conditions under which a defendant can have their jail terms reduced, is exhaustive. It does not take into account other mitigating factors, such as a guilty plea, in this case.

Commentator: Amplify Fear and Create Chilling Effects

Sang Pu (pen name), legal personnel and a commentator on current affairs, told The Epoch Times that the Court of Final Appeal verdict is very bad. It no longer follows the customary ruling that “a guilty plea will reduce the sentence by one-third.” Instead, it gives the designated judge under the NSL the discretion to decide first the severity rank and then the power to raise the threshold in punishment later. This is bringing great harm to human rights in Hong Kong.

One of the controversial points in the case heard by the CFA this time is that in Article 21 of the Hong Kong National Security Law, “if the circumstances are considered serious, the penalty shall be fixed-term imprisonment of not less than five years but not more than ten years.” Mr. Lui’s side disputes whether “a fixed-term imprisonment of more than five years” is mandatory, and believes that “more than five years” is the starting point for sentencing, not the minimum sentence.

Mr. Sang pointed out that this is different from Hong Kong’s common law principles because, in China’s criminal law, many provisions are made according to different grades of criminal offense severity, such as “the circumstances are serious,” as well as “the circumstances are particularly serious,” from which the subsequent proceedings will follow. If this is also the case in Hong Kong, judges designated by the NSL at all levels can make arbitrary decisions, and there is no more objective standard. This likely scenario will bring about greater uncertainty about the expected sentence of the defendant and make the judge’s verdict even more questionable to the general public.

The CFA judgment quoted the National Security Law stipulates that if there is any inconsistency between the NSL and local laws, the former shall take precedence. This principle applies also to the provisions related to sentencing.

Mr. Sang pointed out that the result of this judgment will have a very far-reaching impact on the future. It is equivalent to adopting a statutory law passed by the CCP’s rubber-stamp legislature, copying the expression of the CCP’s criminal law, and making Hong Kong courts at all levels closely follow the verdict of the Court of Final Appeal. The judges of the CFA did not dare to violate the relevant provisions of the NSL, allowing the structure of relevant Chinese laws to be integrated into the interpretation of Hong Kong’s common law, resulting in a very deformed pattern.

He added, “I believe that the range of sentences imposed on defendants under the Criminal Law will become increasingly severe, and the uncertainty of the outcome of the reduction of sentences for any defendant who pleads guilty is tantamount to spreading fear and creating a chilling effect, which is extremely detrimental to Hong Kong.”

CFA Grants National Security Law a Free Ride to Persecute Hong Kong Citizens

The Court of Final Appeal’s judgment dismissed some parts of the Court of Appeal’s opinion, including the Court of Appeal’s omission of the “rehabilitative” factor; and the Court of Appeal’s claim that the Court of Appeal could refer to mainland laws, but the Court of Final Appeal held that it could only adopt information directly related to the National Security Law.

Mr. Sang believes that the judgment of the CFA in this respect is correct, but he pointed out that “the minor tinkering of the High Court by the CFA is all flowery, and all of it is not good enough” and that the judges of the Court of Final Appeal made their interpretations in full accordance with the relevant provisions of the National Security Law of Hong Kong, which does not help to minimize the persecution of human rights in Hong Kong under the National Security Law, and is tantamount to granting a laissez-passer. The judgment also does not help to scrutinize the National Security Law for unconstitutionality.

He said, “Basically, the CFA did not handle this matter from the perspective of human rights, but just danced to the tune of the totalitarians, which did not help the current situation of human rights being suppressed by the Hong Kong National Security Law, but rather tacitly recognized its ‘power.’”

An Encouragement in Disguise To Snitch

According to Article 33 of Hong Kong’s National Security Law, a lighter penalty may be imposed, or the sentence may be reduced or, in the case of a minor offense, exempted, if an offender, criminal suspect, or defendant: “in the process of committing an offense, voluntarily discontinues the commission of the offense; or voluntarily surrenders himself or herself and gives a truthful account of the offense; or reports on the offense committed by another person, which is verified to be true, or provides material information which assists in solving other criminal cases.

Mr. Sang pointed out that “voluntarily discontinuation of an offense” is rare in NSL cases. It is also not considered surrendering oneself after the defendant is arrested, so the court has indeed encouraged in disguise that we should report on others (as the only tool remaining).

“I don’t think it will force everyone not to plead guilty, because pleading guilty may still be beneficial in general. But now you are encouraged to obtain credits through reporting others, an act that might reduce your sentence to less than five years or even exonerate yourself. It is tantamount to an encouragement in disguise that everyone should report others, one of the trademark whistleblowing cultures during the Cultural Revolution, which will become more and more prevalent in Hong Kong, creating a slippery slope effect as time goes.”

Fourth Person Put in Jail under the National Security Law

Mr. Lui is the fourth person to be jailed since the enactment of the NSL. He is 26 years old this year and is an engineering undergraduate student at the Hong Kong Polytechnic University. The police first arrested him in September 2020 because the police found in his home a pepper ball gun used for self-defense, a retractable baton, two sabers, and protective clothing. In April 2021, the prosecution accused him of “selling weapons” on the social platform Telegram he hosted, and posting contents suspected of “inciting others in secession of the country.”

According to earlier reports, the defense told the court that Mr. Lui was evaluated positively by his former secondary school teacher as a responsible student. In his letter to the judge, Mr. Lui said that his participation in the 2019 incident was a legal protest, and his original intention was the hope that the opinions of Hong Kong people would be respected, and when the anti-extradition movement was in progress, as an impulsive and idealistic young man, it was difficult for him to stay out of it. His love for Hong Kong was no less than anyone else’s.