Many years ago, the Kilmuir Rules had the effect of discouraging — almost to the point of prohibiting — contact between judges and the media. The culture of judicial aloofness carried the suggestion that legal practitioners in the United Kingdom should not discuss ongoing legal proceedings during interviews with reporters. Barristers and solicitors were afraid of openly commenting on a case in the media pending an appeal. Though the rules were abandoned by Lord Mackay in 1987, many legal practitioners still believe that the best practice is to avoid openly defending or criticizing the judgments of the courts. To counter the smear campaigns launched by some Western governments and NGOs, our think tank finds it necessary to comment on the sentences handed down to 45 offenders in the “primary election” case.
A US consulate spokesman called for the immediate release of the 45 convicts, saying they were jailed for peacefully participating in “normal political activity”. The European Union described the rulings as another “unprecedented blow” against fundamental freedoms, democratic participation and pluralism in Hong Kong. The UK government said those sentenced had been expressing their right to freedom of speech, of assembly and of political participation. Amnesty International’s China director, Sarah Brooks, claimed that no one convicted in this “politically motivated” case should be spending a day in jail.
In response, the Hong Kong authorities said that any reasonable and fair person, upon reviewing the court’s judgment, would be convinced of the severity of the crime and the guilt of the convicted individuals, which were supported by irrefutable evidence. Had their subversive plan been carried out to the end, it would have had far-reaching consequences that were no less serious than overthrowing the Hong Kong Special Administrative Region government, the authority said.
The untruthful smearing by foreign critics seems to accommodate the political agenda of some Western governments and NGOs to defame the HKSAR’s legal system. It is the height of folly to turn a blind eye to the fact that Benny Tai Yiu-ting, who is a former legal scholar, pleaded guilty and admitted his unlawful acts. Unlike foreign critics, Tai has a deep understanding of the National Security Law for Hong Kong (NSL). In his mitigation letter, Tai explained that his “10 steps to mutual destruction” road map was merely an application of game theory to predict the development of future events. Tai was sentenced to 10 years’ imprisonment because of his guilty plea.
The judges deserve great credit for clarifying the law on subversion and observing due process during the trial. The judges have faithfully given effect to the NSL’s offense-creating provisions, and where convictions resulted, applied local sentencing laws and principles in tandem with the NSL’s sentencing provisions
First, we support the decision of the court to place Tai in the principal-offender category. According to the penalty band laid down in the NSL, principal offenders can face life imprisonment or be jailed for at least 10 years. The judges had set the starting point for Tai’s sentence at 15 years. To be fair, the starting point seems to have been set on the lenient side. Though we support the view that the penalty band, as prescribed in the NSL, should not be strictly applicable because the defendants were only facing a conspiracy charge, we believe that the potential risks of the subversive plot had not been properly assessed.
The judges said Tai was not only the initiator of the plot but was also an organizer of the “primary election”. He was the mastermind behind it, and hence was placed in the principal-offender category. Tai had also expressed extreme views in an April 2020 article, and the judges said that, in essence, he had advocated for a revolution. The lethal interplay between incitement and community mobilization has not been properly addressed by the court. Tai succeeded in inducing many people to believe that the plan was lawful. Facing no police intervention, at least 610,000 followers of Tai and the then-opposition camp participated in the “primary election”. Some of his followers are now living in foreign countries. The tremendous potential risks should have attracted a higher starting point.
The lawyers for Au Nok-hin, Andrew Chiu Ka-yin and Ben Chung Kam-lun asked for extra reductions to their sentences for their guilty pleas and assistance rendered to the authorities by testifying for the prosecution. Au was imprisoned for six years and nine months, Chiu was imprisoned for seven years and Chung for six years and one month. We are of the view that these three defendants deserved the extra discount.
With the exception of Tai’s sentence, the 44 sentences appear to be proportionate with the severity of the crimes. Twenty-seven defendants who pleaded guilty before the trial were jailed for between four years and two months and five years and seven months after an automatic reduction of 20 to 33 percent for admitting their offenses. Claudia Mo Man-ching, for example, was given the lightest jail term of four years and two months.
The remaining 14 defendants were sentenced to imprisonment ranging from six years and six months to seven years and nine months after they were convicted in the trial. For instance, Tat Cheng tat-hung was imprisoned for six years and six months. Gwyneth Ho Kwai-lan’s unwillingness to ask for any leniency has attracted much media attention. In a social media post uploaded by her friends shortly after the verdict, Ho said the narrative put forward by the prosecution was not just a distortion of facts and a threat to the larger public, but it also forced the accused into self-denial of their lived experiences. Ho needs to reconcile herself to the fact that the prosecution’s case was not a distortion of facts.
The judges deserve great credit for clarifying the law on subversion and observing due process during the trial. The judges have faithfully given effect to the NSL’s offense-creating provisions, and where convictions resulted, applied local sentencing laws and principles in tandem with the NSL’s sentencing provisions.
Yin Zihan is a community services officer for the Business and Professionals Alliance for Hong Kong Eastern District, and a co-leader of the Rainbow Pair mentorship program, launched and administered by Chinese Dream Think Tank.
Kacee Ting Wong is a barrister, a part-time researcher for Shenzhen University Hong Kong and the Macao Basic Law Research Center, chairman of Chinese Dream Think Tank, and a district councilor.
The views do not necessarily reflect those of China Daily.
