Sentences based on both NSL and common law, court says

The Supreme Court said on Tuesday that the prison sentences handed down in Hong Kong’s biggest-ever national security case were based not only on the 2020 National Security Law (NSL) but also on common law principles.

Forty-five people were given prison terms ranging from four years, two months to ten years for conspiracy to commit subversion, related to their participation in unauthorized primaries that were found to be part of a broader conspiracy to seize control of the legislature. ultimately overthrowing the SAR government.

However, questions have arisen as to whether the defendants should be punished according to the penalties specified in Article 22 of the NSL, which does not mention the crime of conspiracy.

The article provides for 10 years to life imprisonment for those deemed “principal criminals”, 3 to 10 years in prison for “active” participants, and lighter sentences for “other participants”.

The court ruled that although penalty taping “has reference value, it should absolutely not be applied.”

The judges said they also referred to the common law crime of conspiracy.

As a result, the starting points of the custodial sentences imposed by the court on all defendants were in line with the sentences provided for in Article 22 of the NSL.

“While the court assessed the seriousness of the circumstances of the case, its primary focus was on the actual consequences, potential risks, and likely impact as well as the offender’s actions,” the justices wrote.

They stressed that the defendants had not been convicted of any acts before the NSL came into force in 2020 and that no mainland sentences were used as reference.

The court also rejected arguments that the plan was doomed to failure and that the defendants should be given lighter sentences.

“To be successful, there may be obstacles that organizers and participants must overcome, but this is to be expected in every case of subversion where efforts are made to overthrow or paralyze a government,” they wrote.

“In this case, the primary candidates were the central (characters) of the plan; Without them it was not possible to implement the plan. “They supported and actively participated in the program.”

The panel added: “If the plan had been implemented to its full extent, its negative consequences would have been far-reaching and no less serious than the overthrow of the (Hong Kong SAR) government.”

In addition to the four “principal criminals”, 41 defendants were also considered “active participants” by the court.

Among them, detained activist Owen Chow was sentenced to seven years and nine months in prison, Gordon Ng was sentenced to seven years and three months in prison, and former journalist Gwyneth Ho was sentenced to seven years in prison.

Former MPs Lam Cheuk-ting and Leung Kwok-hung, as well as former hospital worker Winnie Yu, were also sentenced to six years and nine months behind bars.

Another defendant, former student activist Joshua Wong, was sentenced to four years and eight months in prison.

The court reduced his sentence by a third due to his guilty plea, but noted that he was “not considered a person of good character” given his criminal record.

“It is worth noting that (Wong) committed the present crime while he was on bail in court,” the court said. “Since (Wong) could not ensure that all crimes were punished in the same trial, we did not feel that we needed to make further reductions.” “The sentence we imposed on (Wong) would not have a crushing impact on him either.”

Former MPs Jeremy Tam and Claudia Mo are among those sentenced to the lightest sentences of four years and two months.

As for Mo, the judges said they were “sympathetic to the ill health” of her husband, Philip Bowring.

“However, the health condition of (Mo’s) husband is not an issue that would prevent (Mo’s) sentence from being imposed,” the judges said.

Some defendants were given reduced sentences after they said they did not know they were breaking the law by participating in the program.

“As for those who invoked ‘ignorance of the law’ as mitigation, we are satisfied that they may have been misled by (Benny Tai) into thinking that this scheme was not unlawful,” the judges said.
________________________________

Last update: 2024-11-19 HKT 16:56