Five years for inciting secession: just what the prosecution ordered

There is a lot to unpack in Woodcock’s about-face in the sentencing of Lui Sai Yu for secession (DCCC 401/2021, 29 April 2022).

First, it is a vivid illustration of why mandatory minimum sentences are problematic: judges are not permitted to sentence as appropriate to the facts and circumstances of each case. Woodcock considered 3 years and 8 months appropriate, but following an objection from the prosecution, revised it to 5 years.

Judgment in DCCC 401/2021

As far back as 1 July 2020, i.e. one day after the world had sight of the NSL, the HKBA noted in their statement that “the provision of mandatory minimum sentences strips away judicial discretion in sentencing”.

Mandatory minimum sentences of imprisonment are virtually unheard of in Hong Kong. The closest analogy one may find are drug sentencing tariffs, where the period of imprisonment varies depending on the quantity of drugs trafficked. But these tariffs exist in case law and, more importantly, can be departed from with good reason. For traffic offences, there are mandatory minimum sentences for disqualification periods, but not for imprisonment.

In Tong Ying Kit’s application for habeas corpus, the defence argued that a mandatory minimum sentence restricts or interferes with the independent judicial power of the Hong Kong courts in a way that is inconsistent with the provisions of the Basic Law. However, the High Court held that there was no impermissible interference (HCAL 1601/2020, 21 Aug 2020, para 66-67), relying on a Privy Council appeal from Jamaica. However, it is arguable how relevant this authority is for Hong Kong’s constitutional context. Furthermore, the court there had expressly noted that legislated minimum sentences are uncommon.

Second: is it correct that the mandatory minimum applies after the discount for a plea of guilty?

Woodcock considered the offence in Lui a “serious” one, for which the NSL provided a sentence of 5-10 years imprisonment. Considering the circumstances of the offence, she adopted a starting point of 5 years and 6 months’ imprisonment, and reduced that by one-third to 3 years and 8 months. This discount applies where a defendant has pleaded guilty at the earliest opportunity, because it reflects the defendant’s remorse.

The prosecution objected. The prosecution relied on R v Andrew James Jordan & Ors, a judgment of the UK Court of Appeal. There, after considering the relevant statute, especially other express provisions in the same statute, the court was satisfied that Parliament was aware of guilty pleas and how they are treated. Therefore, the statutory minimum was to apply regardless of any discount – a sentence could not be reduced below the statutory minimum to reflect a plea of guilty.

Andrew James Jordan is clearly distinguishable from our present case. The context in Hong Kong is vastly different. There is no evidence – whether in the NSL or outside of it – that those who drafted the NSL were aware or had borne in mind how the common law treats guilty pleas. It is not clear at all that the NSL precluded reducing the sentence below the minimum, as long as the correct starting point was taken. There is no reason to adopt the interpretation that is more onerous to the defendant rather than one which would have given effect to the sentence that the judge herself had thought appropriate.

Certain incursions on rights are accepted in the UK context because Parliament is democratically elected, and it is valid for judges to show deference. Hong Kong however is using such precedents to push an authoritarian agenda. The Hong Kong courts get to have their cake and eat it: they borrow the support of the most restrictive common law cases, while distinguishing liberal cases by claiming that the constitutional framework is different.

The Hong Kong courts get to have their cake and eat it: they borrow the support of the most restrictive common law cases, while distinguishing liberal cases by claiming that the constitutional framework is different.

In Lui, the defence had no opportunity to make written submissions on this important point of law raised by the prosecution. One asks whether the judge was at least rash in sentencing without the benefit of further submissions from the defence – or if she was ready to impose any heavier sentence as long as an excuse was available.

The importance of this judgment goes much farther than the injustice done to this defendant. It raises a question that will become extremely important in upcoming NSL cases: is there still any meaningful discount for a plea of guilty? If not, that means any expression of remorse is irrelevant once one is branded an “enemy of the people”. If the discount is still applicable, bearing in mind this case, it can be expected that judges will backward-engineer the sentence starting point in order to allow a discount while meeting the minimum sentence.

Once again, this case illustrates how there is a great lack of clarity in the NSL – which is always used against the accused, without due regard to their rights.

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