Ma Chun-man, the first Hong Kong prisoner made ineligible for early release after a domestic security law was enacted in March, has lost his legal challenge against the new rule.
Ma Chun-man. Photo: Supplied.
High Court Judge Alex Lee on Friday refused the judicial review by Ma, who is expected to serve the remainder of his five-year sentence for inciting secession. He will remain behind bars until November 2025.
Ma filed his challenge of the Safeguarding National Security Ordinance, commonly known as Article 23, after his early release from prison based on good conduct was axed on March 25. Commissioner of Correctional Services Wong Kwok-hing had denied remission of Ma’s sentence on national security grounds, two days after the law came into effect.
Judicial reviews are considered by the Court of First Instance and examine the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Dubbed “Captain America 2.0” for carrying the superhero’s shield during the 2019 protests and unrest, Ma has been remanded in custody since November 2020 under the Beijing-imposed national security law. He was sentenced to five years in jail on appeal for chanting slogans and making speeches that called for Hong Kong’s independence between August and November 2020.
‘Insufficient’ information on rehabilitation
Friday’s judgement made reference to a decision by the corrections chief dated March 25. It stated that Ma had taken part in psychological counselling and religious activities during detention. But there was insufficient information to show that he had “fully rehabilitated, de-radicalised, demonstrated any genuine remorse or renounced his secessionist and radical ideology.”
A Correctional Services Department vehicle outside the West Kowloon Law Courts Building on December 18, 2023. Photo: Kyle Lam/HKFP.
Wong said he was not satisfied that Ma’s early release would not be contrary to the interests of national security.
Lee, a designated national security judge, ruled that a remission of sentence was “discretionary” and did not confer on a prisoner any legal rights or entitlements. Although Ma argued that it was a “common practice” or a “custom” for the Correctional Services Department (CSD) to routinely grant a one-third remission to inmates on the grounds of their “industry and good behaviour, the judge said Ma was not in a position to give evidence on the department’s practices.
During the appeal hearing in October, Ma’s representative argued that the decision to bar Ma from an early release was “tainted by procedural unfairness.” It had effectively increased Ma’s prison term by a year, the counsel argued.
But Lee ruled on Friday that not referring Ma’s case to a board for early release consideration did not increase the prisoner’s sentence, as his sentence was the one meted out by the court.
A Chinese flag in Hong Kong on October 1, 2023. Photo: Kyle Lam/HKFP.
The judge also said there were many cases in which the authorities have said legislative changes – in the execution or enforcement of a penalty affecting existing prisoners – do not violate principles against retrospectivity.
