Case Summary and Outcome

The High Court of the Hong Kong Special Administrative Region (Court of Appeal) upheld a Trial Court’s decision regarding a case of “incitement to secession” under the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. The Applicant, by organizing events, chanting slogans, and using social media platforms, actively promoted the idea of Hong Kong independence, leading to his conviction. Despite arguments challenging the offense’s seriousness and the sentence’s appropriateness, the High Court affirmed the trial court’s classification of the case as “serious” under Article 21 of the NSL. This classification was based on various factors, including the deliberate nature of the Applicant’s actions, the calculated targeting of sensitive dates and locations, and the potential societal impact of his incitement. Although the High Court recognized the relatively low culpability of the Applicant within the “serious nature” category, it determined that a starting point of 5 years and 3 months for sentencing was appropriate, ultimately reducing the sentence imposed by the Trial Court to that duration.

Note: The Applicant, Ma Chun Man, has challenged the constitutionality of the National Security Law before the Hong Kong Court. Ma Chun-man, convicted for inciting secession, was set for early release on March 25, 2024, but had it revoked under a new national security law enacted just days earlier. His lawyers are challenging this decision, arguing it violates his rights, lacks procedural fairness, and effectively creates an “ideology conversion system.” 

Facts

On August 15, 2020, Ma Chun Man, the Applicant, mourned for Leung Ling Kit also called “Rainbow Man” (a Social Activist) outside Pacific Place. The Applicant chanted slogans which inter alia include “Ethnic enhancement, Hong Kong independence”; “Hongkongers to build a state” and “Liberate Hong Kong, revolution of our times.” [para. 6] On several occasions between 15 August 2020 and 22 November 2020 in Hong Kong, the Applicant organized a series of events across Hong Kong’s districts advocating for independence, featuring slogans like “Liberate Hong Kong, the revolution of our times” and “Ethnic enhancement, Hong Kong independence”. [paras. 7-39]

On November 22, 2020, the Applicant organized a gathering at PopCorn shopping mall in Tseung Kwan O to mourn and advocate for independence, chanting slogans including “Hongkongers to build a state”, “Hong Kong independence”, and “All people be valiant, armed insurrection”. The Hong Kong police arrested the Applicant and charges were framed against him for “incitement to secession” under Articles 20 and 21 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security Law). [paras. 40-41]

The prosecution accused the Applicant of inciting others to unlawfully separate the HKSAR from China or change its legal status. The Prosecution alleged that the Applicant engaged in inciting acts including repeatedly chanting slogans advocating for Hong Kong independence, displaying printed materials with similar messages, advocating for independence during interviews, encouraging public discussions on independence, especially in educational institutions, and publishing posts promoting independence on both Facebook and Telegram channels.  The Applicant did not contest the allegations or evidence presented by the prosecution. Before the Trial Court, the Applicant (the defense) contended that he was simply exercising his freedom of speech and had no intention of promoting secession. [paras. 43-45]

The Trial Court found the Applicant guilty of overtly advocating for Hong Kong independence in public places to incite secession. The Trial Court considered the case serious due to the applicant’s lack of remorse, repeated incitement, and potential impact on others. The Applicant’s actions were seen as driven by a need for attention and self-gratification. Despite claiming to act alone, the Trial Court believed the Applicant’s actions could influence others. The Trial Court also noted the applicant’s efforts to undermine the National Security Law (NSL) and mislead others regarding legal consequences, further indicating a serious intent. The Trial Court applied a starting point of 6 years but reduced the sentence by 3 months due to saved trial time, ultimately sentencing the applicant to 5 years and 9 months in prison. [para. 53]

The Applicant filed an Appeal before the High Court of the Hong Kong Special Administrative Region (Court of Appeal). [para. 54]

Decision Overview

Chief Justice Jeremy Poon of the HKSAR Court of Appeal wrote the decision with Justice Derek Pang and Anthea Pang. The primary question before the Court in the application for leave to appeal against sentence was determining, whether the offense of “incitement to secession” committed by the Applicant was of a serious or minor nature according to Article 21, and if deemed serious, assessing whether the sentence of five years and nine months imposed by the Trial Court was excessively harsh.

The Applicant contended that the Trial Court’s categorization of the offense as “of a serious nature” led to an excessively harsh sentence. The Applicant contended that the Trial Court misjudged the Applicant’s level of remorse, placed undue emphasis on the impact of the inciting acts, overlooked the absence of force or defiance toward law enforcement, and failed to adequately consider the limited scope and planning of the inciting actions. It was further argued that even if the offenses were deemed serious, the imposed sentence of five years and nine months remained disproportionate given these considerations. [para. 56]

Before adjudicating upon the present case, the High Court went on to observe the laws applicable to sentencing offenses under the National Security Law and the legislative intent behind the National Security law. [para. 57-65] The High Court noted that when Hong Kong courts issue sentences in cases related to the National Security Law, they must adhere to the relevant provisions outlined in the NSL framework. However, unless expressly stated otherwise in the NSL, the existing corpus of sentencing laws traditionally applied in the Hong Kong Special Administrative Region remains applicable. Any discrepancies between these laws and the NSL provisions should be resolved in favor of the NSL provisions, as stipulated by Article 62 of the NSL. [paras. 66]

The High Court noted that cases under the National Security Law are classified as either “serious nature” or “minor nature” based on the penalties outlined in Article 21. However, the National Security Law lacks specific provisions on this classification method. Given the legislative intent of the NSL to align with local laws and the absence of contrary provisions, Hong Kong Courts apply local legal principles on sentencing to determine this classification. The High Court emphasized the fundamental principle that the gravity of the offense is paramount in sentencing considerations. It highlighted the importance of upholding national unity and territorial integrity, as enshrined in the Basic Law, which establishes Hong Kong as an inalienable part of China under the “One Country, Two Systems” framework. The National Security Law aims to safeguard national security and prevent acts endangering it, including the offense of “incitement to secession” outlined in Article 21. This offense is viewed as pre-emptive, aiming to prevent the incitement of secession before it occurs. Drawing parallels with the common law offense of incitement, the High Court described the gravamen of “incitement to secession” as preventing the encouragement or persuasion of others to commit secession, enabling early intervention by law enforcement to prevent such acts and safeguard national security and territorial integrity. [paras. 69-73]

In assessing whether a case of “incitement to secession” is deemed “serious” or “minor”, the High Court considered various factors drawn from precedents of similar offenses. These factors include the context of the offense, the method of incitement, the frequency and duration of the acts, the scale of the incitement, the presence of violence or threat, involvement of others, target audience, actual or potential outcomes, and societal impact. The High Court evaluated these factors comprehensively to determine the overall severity of the circumstances. Subsequently, general sentencing principles are applied to determine the offender’s culpability and determine an appropriate sentence. [paras. 74-76]

The High Court found the case to be of a “serious nature” under Article 21 of the NSL. Despite a relative easing of tensions in Hong Kong following the “legislative amendment turmoil,” the applicant’s actions persisted, aggravating the risk of endangering national security and undermining public peace. The applicant openly derided the NSL and misled the public, creating a serious challenge to its authority and confusing the populace about the legality of advocating for “Hong Kong independence.” Furthermore, the applicant openly disparaged the NSL as “fake” and trivialized its authority, falsely asserting that advocating for Hong Kong independence was legal. Such actions challenged the NSL’s authority and confused the public, increasing the risk of secessionist activities. While the defense claimed the applicant was ignorant of the law and believed he was exercising freedom of speech, the Trial Court rejected this notion, emphasizing the Applicant’s determined commitment to his actions. [para. 73-79]

The Applicant’s modus operandi, including selecting sensitive dates and locations for incitement, utilizing media interviews, and using the internet to propagate his message, aimed to maximize the impact of his incitement. Despite arguments to the contrary, the High Court noted that the applicant’s incitement was not haphazard but followed certain steps and levels, indicating a calculated approach to his actions. Lastly, the High Court highlighted the Applicant’s targeting of students and the broader public for incitement, as well as his efforts to turn secessionist activities into a local tradition. While the defense argued that the slogans and acts lacked a detailed plan, the High Court observed that while not meticulously planned, the incitement did outline certain steps and levels, indicating a potential risk of incitement to commit crimes as per the Applicant’s suggestions. [paras. 80-83]

Upon thorough consideration, the High Court noted that the applicant’s repeated arrests for incitement, followed by immediate reengagement in such activities upon release on bail, demonstrated a blatant disregard for the law, thereby exacerbating his culpability. [para. 93] While the absence of force or threat of force by the applicant was acknowledged, the High Court emphasized that the overall circumstances, including the overt use of provocative slogans, rendered the offense no less serious. [para. 95] (HKSAR v Wong Yun Fat [2017] 4 HKLRD 59 and Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 657) Additionally, the High Court concurred with Mr. Choy’s argument that the Trial Court’s reliance on the Applicant’s lack of remorse as a factor in classifying the case as “serious” was erroneous, as remorse is merely one of several mitigating factors for sentencing. [paras. 96-97] Nevertheless, considering eight specific factors, including the deliberate nature of the Applicant’s actions and the calculated targeting of sensitive dates and locations, the High Court upheld the Trial Court’s classification of the case as “serious” under Article 21 of the National Security Law. [para. 98]

In assessing whether the sentence imposed by the Trial Court was manifestly excessive, the High Court determined that while the case fell within the category of “serious nature,” the Applicant’s culpability was relatively low within this category. Thus, the High Court concluded that the Trial Court’s starting point for sentencing at 6 years was excessive, opting instead for a starting point of 5 years and 3 months. Additionally, the Court noted the Trial Court’s discretion in reducing the sentence by three months based on the conduct of the defense, a decision upheld by the High Court, resulting in a final sentence of 5 years imprisonment. [para. 99]