Hong Kong national security law: High Court judges in first sentencing reject prosecution call to follow legal principles from mainland China

·4-min read

The first person to be convicted under Hong Kong’s national security law will be sentenced on Friday and faces the possibility of life in prison, although the High Court has rejected prosecutors’ calls to draw on legal principles from mainland China in deciding his fate.

At a mitigation hearing on Thursday, prosecutors said they had not consulted Beijing officials over the sentencing of former restaurant worker Leon Tong Ying-kit, who was found guilty of terrorism and inciting subversion, but they urged the judges to take into account relevant legal texts and commentaries published on the mainland.

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Among the works they cited was a reference book – by Zhang Shuyuan, a judge at China’s highest court – explaining the conditions laid out in the constitution for setting lighter penalties and reducing sentences.

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Such publications could best reflect the legal concepts and legislative intent of the national security law when it was imposed by Beijing a year ago, according to the prosecution.

But the three judges hearing Tong’s case said they were not bound by authorities in other jurisdictions and would instead follow established protocols under local legislation when determining sentence.

Tong, 24, appeared again before the judges, who were hand-picked by the city’s leader, as his lawyers put forward mitigation on his behalf ahead of Friday’s sentencing.

The former restaurant worker was found to have provoked separatism by displaying the slogan “Liberate Hong Kong; revolution of our times” – a rallying cry of the 2019 anti-government movement – on a black flag mounted to his motorcycle during a protest in Wan Chai against the new legislation.

He was on Tuesday convicted of terrorism and inciting secession for offences committed on July 1, 2020 – the day after the Beijing-imposed national security law, which also targets subversion and collusion with foreign forces, came into effect.

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The three-judge panel held that Tong had also committed an act of terrorism causing grave harm to society by running into the three police officers – a symbol of law and order – and intimidating members of the public, especially those with opposing political views.

Under the security law, terrorism carries a minimum jail sentence of 10 years, which can be extended to life if the perpetrator causes “serious bodily injury, death or significant loss of public or private property”. Incitement to commit secession is punishable by a fixed jail term of five to 10 years for serious offenders, and not more than five years for more minor infractions.

Leon Tong, pictured in August 2020. Photo: Handout
Leon Tong, pictured in August 2020. Photo: Handout

Article 33 of the security law states that a lighter penalty or a reduction in sentence only applies in cases where the defendant “voluntarily discontinues the commission of the offence”, “surrenders himself or herself and gives a truthful account of the offence”, or “reports on the offence committed by other persons … or provides material information which assists in solving other criminal cases”.

After a discussion among the bench on Thursday, Madam Justice Anthea Pang Po-kam said the panel would follow the “usual, statutory interpretation” in approaching the new law.

In mitigation, Clive Grossman SC urged the court to adopt a starting point for sentencing of fewer than 10 years for the terrorism charge, and fewer than five years for the incitement offence.

He reiterated that the attack Tong was found to have initiated was a result of his “reckless driving”, and that he had been avoiding the police until the crash.

The incident did not result in large-scale casualties, and the injuries sustained by the three police officers were relatively minor, the lawyer said, adding the incitement attempt did not provoke anyone into committing any separatist acts.

Grossman said Tong was “truly regretful” and hoped to apologise to the injured officers.

“The chances of this person, when he is out of prison, [doing] the same offences are so remote, so fanciful, as if it was non-existent,” the lawyer added.

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