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NSL judges given sentencing flexibility

By Colin Cohen

Hong Kong, 11 September 2023: A landmark Court of Final Appeal (CFA) judgment has provided welcome clarity regarding sentencing guidelines in national security cases. While confirming that mandatory minimum sentences are indeed mandatory, the top court has given judges leeway to consider – as they do in non-national security hearings – a range of mitigating factors and the prospect of rehabilitation.

The CFA has also rejected the notion that judges can refer to Mainland legislation for guidance when interpreting the national security law (NSL). In doing so, it has reiterated with finality the need for the NSL to be compatible with Hong Kong’s existing legal system.

Background

The case was brought before the CFA by student Lui Sai-yu, who was convicted of inciting independence by the District Court in April 2022. He pleaded guilty, believing his sentence would be reduced by the usual one third in return. The judge used a term of five-and-a-half years as the starting point but could only reduce it by six months, since five years was the mandatory minimum sentence for a “serious” secession offence.

Lui challenged his sentence in the Court of Appeal (CA), which affirmed the five-year minimum with a vigorous ruling that emphasised deterrence and punishment while stressing there was precious little wiggle room for sentence reduction. And so to the CFA, which agreed to hear the appeal given that “points of law of great and general importance” were involved.

CFA ruling

The CFA has dismissed both grounds of Lui’s appeal, thus confirming that the minimum five-year term for an offence of a “serious nature” is mandatory and that the only instance where judges can reduce sentences below the minimum are three exceptions outlined in Article 33 of the NSL, all of which relate to cooperating with the authorities.

At the same time, however, the CFA has pushed back on three of the more robust elements of the CA’s judgment. First, it disagrees with the CA’s contention that the NSL’s “Primary Purpose” of safeguarding national security is so paramount that not all the usual mitigating circumstances should apply in sentencing. The CFA insists “the court must determine the appropriate nature and level of sentence and, in doing so, takes into account both aggravating and mitigating factors as well as the individual’s circumstances”. It adds: “There is no basis for suggesting that … selected elements of the local sentencing laws and principles should somehow be excluded from consideration.”

Second, in noting the CA’s citing of deterrence, retribution and denunciation as factors in sentencing, the CFA describes the lower court’s failure to include the principle of rehabilitation as “a glaring omission”. It notes that “in a particular case a court might well think it appropriate to give weight to the objective of rehabilitation by imposing a short, training-oriented sentence or a non-custodial sentence as the best means of protecting society”. Further, a young person “might best be kept out of jail with a view to his or her rehabilitation and to avoid turning such person into a hardened anti-social offender”.

Third, the CA had declared that mainland legislation could help guide Hong Kong judges when interpreting the NSL. Again, the CFA overrules, saying: “With respect, we do not agree that the proposition so formulated represents a general principle.” It notes that only rulings and interpretations relating to the promulgation of the national security law should be considered in support of a court ruling.

Summary

The CFA’s reasoned and balanced judgment, while acknowledging the gravity of national security offences, confirms authoritatively that sentencing decisions in such cases should take into account all four principles of punishment – deterrence, retribution, prevention and rehabilitation – as well as operate in tandem with Hong Kong’s local sentencing laws. In short, it gives judges a necessary degree of flexibility.

On a wider note, the ruling underscores the independence of our Judiciary and the widely-recognised excellence of the CFA, which continues to benefit – although not in the case just discussed, admittedly – from the presence of overseas non-permanent judges.

Senior Partner in BC&C since 2004, Colin Cohen has vast experience in the highest levels of Hong Kong’s legal system, leading teams in complex corporate crime cases, high-conflict civil litigation, dispute resolution, landmark judicial reviews and Court of Final Appeal hearings. He can be contacted at colin@boasecohencollins.com.

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