Hong Kong’s national security committee weighed in on refusal of prisoner’s early release under new law, court hears

Hong Kong Free Press

Hong Kong’s national security committee weighed in on a decision made by the city’s correctional authorities to deny a prisoner early release for good conduct in jail under a newly-enacted security law, a court has heard.

The High Court on Wednesday heard that the Committee for Safeguarding National Security, which was established under a security law imposed by Beijing in 2020, obtained a report from the commissioner of correctional services regarding inmate Ma Chun-man.

Ma is serving a five-year sentence for inciting secession under the Beijing-imposed law, and was expected to be released from prison on March 25 this year. The remission of his sentence was not granted, though, after a separate security legislation came into force on March 23 that changed the threshold for early release for inmates convicted of national security offences.

The court earlier heard the prisons commissioner was not satisfied that Ma’s early release would not compromise national security – a new rule mandated under the Safeguarding National Security Ordinance, widely known as Article 23 – and decided not to refer him to a statutory board to consider his early discharge.

Customarily, a prisoner’s sentence can be reduced by a third for good behaviour while in custody.

After being denied remission, Ma filed the first legal challenge against the new law, asking the court to quash the commissioner’s decision on the grounds that it was unlawful and had amounted to procedural unfairness.

The court heard on Wednesday that the national security committee in early April sent a letter to the commissioner after receiving their report on Ma. The contents of the letter were not read out in court.

But the letter would have the effect of binding the commissioner to make the same decision again, even if the court ruled in favour of Ma, according to Senior Counsel Mike Lui, representing the government.

Lui told judge Alex Lee, who has been handpicked to handle the city’s national security cases, that the commissioner would be required by Article 23 to “respect and implement” the judgements and decisions of the national security committee.

“Even assuming [Ma] is successful in this [legal challenge] and the commissioner has to reconsider the matter afresh, he is bound to make the same decision,” Lee said, to which Lui replied: “Yes.”

The Beijing-imposed security law stipulates that no institution or individual in Hong Kong should “interfere with the work of the committee,” the decisions of which are also not subject to legal scrutiny.

Barrister Steven Kwan, for Ma, urged the court not to consider the committee’s letter in the determination of the case, saying “we cannot assume the letter from the [committee] is the last word.”

But his submission was dismissed by the judge, who said he “simply won’t speculate one way or another.”

The national security committee is chaired by the city’s leader and advised by a figure designated by Beijing, according to the security law enacted in 2020. Information about its work is protected from disclosure under the law.

This is the second known instance of the committee weighing in on refusing a prisoner’s early release. Last month, it was revealed in court that a former student leader jailed for a common law offence had been denied a sentence remission on national security grounds following a decision by the committee.

‘Black-clad people’

Earlier in Wednesday’s hearing, the court heard a prison committee tasked with assessing inmates convicted of national security offences had alleged that Ma was connected to others imprisoned for “black-clad violence,” which is how officials have come to refer to the 2019 protests and unrest.

Kwan argued that the prison committee had in effect prohibited his client from regulating his conduct and cutting ties with such people by withholding their identities from him.

Ma also did not have a “reasonable and meaningful opportunity” to reply to the commissioner’s decision without “sufficient information” of the prison committee’s assessment of him, Kwan said.

national security law banner — A national security billboard. Photo: GovHK.

But Lui contended that the withholding of the information was justified given Ma’s case involved risks to national security. “There is certain information that the government would not be comfortable to disclose,” he said.

Lui also said Ma had been aware of “the gist of the allegation,” as Ma had responded to points raised by the prison committee, such as his behaviour in jail and his rehabilitation progress, in his written statement filed on March 25.

Lui said Ma “certainly knew what he had to respond to,” given his assertion in the statement that “the risk I posed to national security had gradually diminished.”

Lee said he expected to hand down his judgement in late-November, but he added that the parties had filed over 4,000 pages of submissions and he could not promise on the date of delivery.

Beijing inserted national security legislation directly into Hong Kong’s mini-constitution in June 2020 following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts – broadly defined to include disruption to transport and other infrastructure. The move gave police sweeping new powers and led to hundreds of arrests amid new legal precedents, while dozens of civil society groups disappeared. The authorities say it restored stability and peace to the city, rejecting criticism from trade partners, the UN and NGOs.