Hongkonger granted bail pending appeal against 8-week jail term for insulting Chinese anthem at volleyball match
Hong Kong Free Press
A Hong Kong man has been released on bail pending an appeal against his eight-week jail term for insulting the Chinese national anthem at an international volleyball game last year.
Chan Pak-yui was sentenced to eight weeks behind bars at the Kowloon City Magistrates’ Courts on Monday afternoon, almost a month after he was found guilty of insulting the Chinese national anthem during a match at the Hong Kong Coliseum last June.
Chan filed an appeal against his conviction and sentence immediately after Magistrate Kestrel Lam meted out his prison term. Considering that the length of Chan’s imprisonment was relatively short, Lam agreed to release him on bail pending appeal to avoid causing “grave injustice” to the defendant in case his conviction and sentence were overturned.
Chan, who was 21 at the time of the offence, was said to have covered his ears and remained seated when the March of the Volunteers was played before a FIVB Volleyball Women’s Nations League match on June 16, 2023. He also sang Do You Hear the People Sing, a song from the musical Les Miserables that was popular during the pro-democracy protests in 2014 and 2019.
Chan had pleaded not guilty to the charge and stood trial in April. Lam found him guilty last month after rejecting his defence that he had autism and attention deficit hyperactivity disorder (ADHD). Lam ruled that the defendant had deliberately insulted the national anthem, saying Chan had told the police under caution that he “disliked” the Chinese team and the Chinese anthem.
On Monday, Chan’s representative, barrister Steven Kwan, told the court that his client had shown a “delayed remorse” and regretted his behaviour. Chan accepted that his actions amounted to “disrespect” of the Chinese national anthem and understood the consequences of his behaviour, the lawyer said.
In pleading for a lighter sentence, Kwan said the case was not political and it took place at a time when the atmosphere in society was “relatively calmer.” The counsel argued that Chan’s behaviour was not “continuous,” and only a handful of people had seen what he did. The spectators around Chan had testified earlier that they found Chan’s actions to be “strange,” and no one was “encouraged” by his behaviour to engage in any illegal acts, Kwan said.
The barrister cited Chan’s autism and ADHD to argue that the punishment imposed on defendants with psychiatric conditions should not be used to demonstrate deterrence to the general public.
Lam said the court would consider the defendant’s medical history in general, and whether it affected the defendant’s self-control. In the present case, however, Chan stopped taking his medications on his own two days prior to the offence, which “greatly reduced” his defence, the magistrate said.
In handing down his ruling, Lam said the National Anthem Law was a relatively new legislation and there were no binding rulings from a higher court that could serve as a sentencing guide for the present case.
Instead, Lam cited a Court of Appeal case involving a defendant with ADHD, who was convicted of insulting the Chinese national flag. Similar to the national flag, the national anthem carried symbolic significance and represented the dignity and territorial integrity of China, the magistrate ruled.
“The national anthem must be protected. The dignity of the national anthem must be protected comprehensively,” Lam said in Cantonese.
Lam also rejected Kwan’s plea for non-custodial sentence or a suspended jail term, saying Chan had not shown genuine remorse.
Lam eventually adopted nine weeks of imprisonment as the starting point of sentence and reduced the sentence by one week due to his medical history.
Chan was released on a cash bail of HK$8,000. Under his bail conditions pending the appeal, Chan is not allowed to leave Hong Kong and his travel documents would continue to be confiscated. He also has to report to the police weekly and reside at his reported address.
Hong Kong passed a law that criminalised insulting the March of the Volunteers, the Chinese national anthem, in 2020. The law regulates the use of the national anthem and sets out standards of behaviour when it is played.
Offenders risk fines of up to HK$50,000 or three years in prison. Chan, however, faces a maximum jail term of two years as his case is being heard in a magistrates’ court.
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