Hong Kong's top court on Tuesday issued a landmark ruling affirming mandatory minimum sentences for people convicted of national security crimes, potentially affecting dozens of pro-democracy figures standing trial or appealing jail terms.
The national security law Beijing imposed on Hong Kong in 2020 after months of democracy protests sets out minimum jail terms for serious offences, a feature rarely seen in the former British colony's criminal justice system.
The Court of Final Appeal heard this month that a strict interpretation of the security law when it came to jail sentences would be "unfair and unjust" to university student Lui Sai-yu.
The 26-year-old Lui, who was convicted of "incitement to secession" last year and handed five years in prison, had appealed his sentence.
He argued he should have benefited from a one-third sentence reduction given to those who plead guilty -- a practice typically adopted by judges under Hong Kong's common law system.
But Hong Kong's Court of Final Appeal on Tuesday ruled unanimously that the security law used "mandatory language" in describing the length of jail terms.
For inciting secession, crimes of a "serious nature" will see offenders jailed for "not less than five years but not more than 10 years", according to the law.
The judges said there are only three ways for convicts to trim their sentences, which are set out in the law in an "exhaustive" list.
The purpose of the rule was to "provide... an incentive to desist from committing offences, to assist the authorities in the suppression of activities endangering national security and to facilitate law enforcement", they added.
Eric Lai, a legal scholar at Georgetown University, said the ruling "further raises doubts" on how Hong Kong's common law system could work with integrity.
"It is clear that the local common law system has to compromise with the imposition of the national security law," Lai told AFP.
The security law allows sentence reductions for people who inform on other offenders, which Lai said may "create an incentive for the pro-democracy movement to further break down".
Tuesday's decision effectively lays down binding sentencing procedures for future national security cases.
Among the most high-profile cases are jailed pro-democracy media tycoon Jimmy Lai -- who will be tried for foreign collusion in December -- as well as 47 opposition figures tried for national security crimes.
Lui was the fourth person jailed under Hong Kong's security law after the court found that he advocated for Hong Kong separatism and resisting communist rule on the messaging app Telegram.
At trial, the court heard that Lui's messages include "Liberate Hong Kong, revolution of our times" -- a protest slogan now deemed illegal.
As of June, police had arrested 260 people under the security law and around 60 percent had been charged.
Hong Kong government given second chance to ban protest song
Hong Kong (AFP) Aug 23, 2023 -
A Hong Kong court granted the government permission on Wednesday to lodge another attempt to ban an anthem that emerged from 2019 pro-democracy protests, after rejecting the bid last month.
Officials in June requested an injunction to ban the song "Glory to Hong Kong", penned anonymously at the height of the protests, to stop it from being performed or disseminated with criminal intent.
But in a surprise ruling late July, the High Court refuse
d the application, saying that an injunction would not be useful and would cause "chilling effects" on free expression.
The government appealed the decision, and on Wednesday judge Anthony Chan -- who had presided over the denial last month -- gave it the green light to be heard.
"Due to the importance of national security, the law on which is of course a new frontier, I am inclined to grant leave" to appeal the decision, wrote Chan.
Chan had previously said in his denial that the acts the government was trying to stop were already covered by existing laws -- including a national security law imposed by Beijing in 2020 in the protests' aftermath -- and that an injunction had "no real utility".
Over the past year, Hong Kong's government has reacted angrily to the song being played in error as the city's anthem at several international sporting events.
Hong Kong does not have its own official anthem, and uses China's "March of the Volunteers".
Hong Kong's technology minister previously said the injunction was partly meant to convince tech giant Google to delist "Glory to Hong Kong" from internet search results.
Observers have questioned whether the ban, if granted, could affect the operation of major online content platforms such as Google, Spotify and YouTube in Hong Kong.
Last month, the American Chamber of Commerce welcomed the court's decision and said it showed "judicial independence in place to underpin the global competitiveness of Hong Kong".
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