Hong Kong judge orders prisoner to foot legal costs for failed Article 23 challenge after gov’t petition
Hong Kong Free Press
A Hong Kong prisoner whose legal fees for a failed legal challenge of the city’s local security law were waived after a judge said it was in the public’s interest has been ordered to pay half the costs following the Correctional Services Department’s successful petition.
Ma Chun-man, a former food delivery worker who was jailed for five years for inciting secession by chanting slogans in 2020, filed a judicial review after he was denied early release last March.
Typically, prisoners can get one-third off their sentence for good behaviour in jail. But Ma was made ineligible because Article 23 – the local security law that passed that month – stated that authorities could deny early release if they believed it would be “contrary to the interests of national security.”
Ma filed a judicial review, with the first hearing held in October.
A judicial review is considered by the Court of First Instance and examines the decision-making processes of administrative bodies. Issues under review must be shown to affect the wider public interest.
Ma’s lawyer argued that the denial of early release was “tainted by procedural unfairness” as Ma was not given “reasonable opportunity” to represent himself.
In December, Judge Alex Lee shot down Ma’s judicial review. He wrote that it was not necessary for Ma to be granted an “oral hearing” before the rescinding of early release and that “adequate reasons had been given” for the decision.
Usually, the losing party of a judicial review has to foot the winning party’s legal costs in addition to their own. But Lee said that there would be “no order as to costs” because the “important legal issues” raised in the review – the first challenge of the local security law – were in the public’s interest.
The Commissioner of Correctional Services filed an application in protest of the court’s decision to waive Ma’s legal fees in December, according to The Witness.
On Monday, Judge Lee said in court that the hearing took up two days in October and involved summoning a witness.
While seven legal arguments were raised by Ma, only one was merited for consideration, Lee said, but “that ground alone took up a significant proportion” of the court’s time.
Ma has to pay half of the costs for the October hearing, as well as the fees for the corrections authorities’ challenge regarding the legal fees, Lee ruled.
Ma is expected to be released from jail earliest in November this year, according to The Witness.
Dubbed “Captain America 2.0” for carrying the superhero’s shield during the 2019 protests and unrest, Ma was the third person charged under the national security law, which Beijing imposed in June 2020.
In March 2024, the city passed a domestic security law known as Article 23 to “plug loopholes” in the Beijing legislation.
Separate to the 2020 Beijing-enacted security law, the homegrown Safeguarding National Security Ordinance targets treason, insurrection, sabotage, external interference, sedition, theft of state secrets and espionage. It allows for pre-charge detention of up to 16 days, and suspects’ access to lawyers may be restricted, with penalties involving up to life in prison. Article 23 was shelved in 2003 amid mass protests, remaining taboo for years. But, on March 23, 2024, it was enacted having been fast-tracked and unanimously approved at the city’s opposition-free legislature.
The law has been criticised by rights NGOs, Western states and the UN as vague, broad and “regressive.” Authorities, however, cited perceived foreign interference and a constitutional duty to “close loopholes” after the 2019 protests and unrest.
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