BREAKING: Hong Kong student convicted under national security law loses appeal against 5-year sentence at top court
Hong Kong Free Press
A Hong Kong student who was denied a jail term reduction under the national security law has lost his appeal against his five-year sentence at the city’s top court.
Lui Sai-yu, a former Hong Kong Polytechnic University student, was sentenced to five years in jail last April. He was accused of inciting secession over selling weapons on messaging app Telegram and posting pro-independence messages.
Despite pleading guilty, Lui was not given the one-third jail term reduction – which is customarily given when a defendant enters a guilty plea – after the judge revised his sentence upwards in an unprecedented move.
Initially, District Court judge Amanda Woodcock took a starting point of five years and six months, and, considering his plea, took a third off the jail term to arrive at three years and eight months.
But the prosecution argued that as Woodcock had deemed Lui’s national security offence “serious,” it should warrant a sentence of between five and 10 years according to the security legislation.
Woodcock then walked back the original sentence reduction to deliver a jail term of five years.
A landmark appeal
Lui’s case was heard at the Court of Final Appeal earlier this month, marking the first time the city’s highest court had seen a challenge to a national security sentence.
Representing Lui, Senior Counsel Robert Pang referred to Article 33 of the Beijing-imposed national security law, which spells out three conditions under which an offender could have their penalty reduced. They include voluntarily discontinuing the commission of the offence or forestalling its consequences, voluntarily surrendering and giving a truthful account of the offence, and reporting an offence committed by somebody else.
Pang argued that the conditions were not exhaustive, and that the mitigating effects of a timely guilty plea should be considered.
The lawyer also discussed Article 21 of the security legislation, which states that a person should be jailed for “not more than five years” if the offence is of a minor nature, and “not less than five years but not more than 10 years” for offences of a serious nature. It was this provision that prompted the lower court judge to revise Lui’s jail sentence upwards.
Pang said five years was a starting point, not a minimum jail sentence length for someone whose offence is deemed serious. Raising a hypothetical scenario, Lui’s lawyer said it “cannot be right” that two defendants convicted of a crime and jailed for five years – with one pleading guilty, and the other showing no remorse at all – would be handed the exact same sentence.
In response, the prosecution said the court must consider that the aim of the Beijing-imposed law was to counter acts that endangered national security, so it should factor in deterrent, punishment and other elements relating to “penological concern.”
In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure.
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.
Support HKFP | Policies & Ethics | Error/typo? | Contact Us | Newsletter | Transparency & Annual Report | Apps
