Denial of early release from prison ‘unfair,’ Hong Kong man argues in first legal challenge of new security law

Hong Kong Free Press

The first person denied early release from jail under Hong Kong’s new security law has argued in court that the treatment was unfair as he was not properly informed about the decision by the city’s corrections authorities.

The High Court on Tuesday heard the first legal challenge against the newly enacted Safeguarding National Security Ordinance, known locally as Article 23. It was launched by Ma Chun-man, who is currently serving a five-year sentence for inciting secession under a separate security law Beijing imposed in 2020.

Ma filed the judicial review of Article 23 after his early release from prison based on good conduct was axed on March 25 this year by the Commissioner of Correctional Services 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.

Under Article 23, a national security prisoner “must not be granted remission” of their sentence unless the commissioner is satisfied that an early release “will not be contrary to the interests of national security” – a departure from the city’s customary one-third sentence remission based on good conduct in jail.

‘Kept in the dark’

Barrister Steven Kwan, representing Ma, told the court that his client was verbally informed by a prison officer on March 23 that his scheduled early release had been cancelled.

According to Kwan, on that day, Ma was told in Cantonese that “[you] cannot leave on March 25. A review is due in one year. Do you have any representation to make?”

Ma had not received any document explaining the cancellation until after he made a written submission on March 25, Kwan said. Later that day, Ma was told about the commissioner’s decision to bar him from early discharge.

“[Ma] was somehow kept in the dark as to what case he was asked to reply,” judge Alex Lee, a designated justice for the city’s national security case, said in response to Kwan.

But Ma’s account was contradicted by the account of Lo Ho-kuen, a superintendent at Tong Fuk Correctional Institution, where Ma was serving his sentence.

The court heard that Lo verbally explained to Ma on March 23 three key considerations behind a proposal by a prison committee to deny him early release, which included his conduct in jail, his progress in rehabilitation, and a psychological assessment of him.

The committee, tasked with assessing prisoners convicted of national security offences, considered that Ma “was not enthusiastic in participating in rehabilitation programmes and would not reveal his genuine feelings,” the court heard.

Lo was said to have met Ma four times on March 25 as to receive the latter’s written representation in the morning and to deliver the commissioner’s decision in the afternoon. Ma, however, told the court he never met Lo on that day.

Commenting on their differing statements, judge Lee said: “in effect… someone must be lying” and summoned Lo to the witness stand.

Lo testified in Cantonese that he was told by his superior on March 23 that Ma’s scheduled release had been cancelled. He then informed the prisoner, who he said appeared “emotionally down” upon hearing the news.

Lo said he told Ma that he would have 24 hours to make a representation – also a message relayed from his superior – and sent Ma to prison hospital that evening for “fear that something could happen to him.”

Tong Fuk Correctional Institution. Photo: Google Street View.

He said he did not record the conversation verbatim in his prison entries but maintained that he had verbally informed Ma of the three considerations behind the denial of his early release.

On March 24 – a Sunday – Lo did not work but had instructed two colleagues to ask Ma to sign a form indicating his knowledge of the notice, he said. An extension was also granted that day for Ma to prepare his written representation, he added.

But he said he did not deliver the “summary of considerations,” a document that outlined the committee’s considerations, until his superior at around 1.30 pm on March 25 told him to. At this time, Ma had already filed his representation.

Lo also said his superior instructed him to pass the document to Ma “as soon as possible” once it was available.

“All in all, you just relay whatever message was given to you by your boss,” judge Lee said, to which Lo agreed.

‘Changed legal landscape’

During the hearing on Tuesday, Lee also said there was no evidence that the correctional services would “routinely grant” a one-third sentence remission to prisoners, questioning Kwan’s submission.

“The whole point here is that after the enactment of [Article 23], the legal landscape simply changed so that good behaviour is no longer the sole consideration” for granting early release, the judge said.

If the commissioner was not satisfied that an early release given to a prisoner would not compromise national security, he “simply has no power” under the new regulations to refer inmates to a statutory board to consider the early discharge, he added.

The hearing continues on Wednesday.

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 for inciting secession 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. He is expected to be released next November.

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