The High Court says the prison sentences it handed out on Tuesday in Hong Kong’s largest national security case so far 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 year and two months to ten years for conspiracy to commit subversion, in relation to their involvement in unauthorised primary polls that were found to be part of a wider plot to seize control of the legislature and ultimately to overthrow the SAR government.

However, questions were raised as to whether the defendants should be sentenced according to the penalties laid out under Article 22 of the NSL, which makes no mention of the offence of conspiracy.

The article mandates prison sentences of between 10 years to life in prison for those deemed “principal offenders”, three to 10 years for “active” participants, and lesser penalties for “other participants”.

The court decided that while the penalty banding is of “reference value, [it] should not be strictly applicable.”

The judges said they also made reference to the common law offence of conspiracy.

Ultimately, the starting points of the custodial sentences the court meted out to all defendants ended up being in line with the penalties mandated under Article 22 of the NSL.

“When the court assessed the seriousness of the circumstances of the case, the prime focus was on the offender’s acts, as well as the actual consequences, potential risks and possible influence entailed”, the judges wrote.

They stressed that the defendants were not sentenced for any acts prior to the enactment of the NSL in 2020, and no mainland sentences were used as a reference.

The bench also rejected arguments that the scheme was doomed to fail and the defendants should be given lighter sentences.

“In order to succeed, the organisers and participants might have hurdles to overcome, that however was expected in every subversion case where efforts were made to overthrow or paralyse a government,” they wrote.

“In this case, candidates for the primary election were essential [characters] of the scheme, without them, the scheme simply could not get off the ground. They lent their support to and actively participated in the scheme.”

The bench added: “Had the scheme been carried out to the very end, the adverse consequences would be far reaching and no less serious than overthrowing the government of the [Hong Kong SAR].”

Besides the four “principal offenders”, 41 other defendants were deemed "active participants” by the court.

Among them, jailed activist Owen Chow was jailed for seven years and nine months, Gordon Ng received a jail term of seven years and three months, and former journalist Gwyneth Ho was imprisoned for seven years.

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

Another defendant, former student activist Joshua Wong, was slapped with a jail term of four years and eight months.

The court reduced his sentence by one-third for his guilty plea, but said it “did not consider him to be a person of good character” given his criminal records.

“It should be noted that [Wong] committed the present offence while he was on court bail," the court said. “We did not think we should give further reduction because [Wong] could not have all the offences sentenced in the same proceedings. The sentence we passed on [Wong] also would not have a crushing effect on him.”

Among those who were given the lightest sentences of four years and two months are former lawmakers Jeremy Tam and Claudia Mo.

Regarding Mo, the judges said they were “sympathetic to the ailing health” of her husband, Philip Bowring.

“However, the health condition of [Mo’s] husband is not a matter that can militate against the sentence to be passed on [Mo],” the judges said.

Some defendants were given sentence reductions after saying they didn’t know they were breaking the law when taking part in the scheme.

“As to those who pleaded ‘ignorance of the law’ as mitigation, we were satisfied that they might have been misled by [Benny Tai] into thinking that the scheme was not unlawful”, the judges said.
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Last updated: 2024-11-19 HKT 16:56