Hong Kong's biggest National Security Law (NSL) case, the "47 Defendants Case," reached sentencing today. Beyond the disappointment and injustice felt over the sentences for the 45 individuals, the UK-based human rights organization The 29 Principles conducted the following analysis, comparing the case with similar human rights rulings in mainland China.
In fact, NSL, in the same way as Article 105 Criminal Law of the People's Republic of China, has provided 3 bands of sentencing for the offense of Subversion. The principal offender will attract 10 years to life imprisonment; the active participants will get 3 years to 7 years. Those who played a minor role will get a maximum of 3 years.
In the past two decades, Mr Liu Xiaobo of the People's Republic of China who was convicted in 2009 of inciting subversion after publishing political and social writings was given 11 years. A dissident Mr Qin Yongmin was twice given 11 years in 1998 and 13 years in 2018 for similar offenses. These two persons have had the heaviest sentence in most of the convicted offenders of subversion. Since 2010, with only a few exceptions most subversion charges would attract between 7 years to 4.5 years with a handful of cases ending with 3 years or below, including Mr Zhou Shifeng of Fengrui Law Firm in 2015, Mr Wang Quanzhang in 2019, and Mr Yu Wensheng in 2020, etc.
The China court sentenced Mr Xu Zhiyong for 14 years in 2023, and Mr Ding Jaixi 12 years in 2022, both for subversion charges in connection with what is known as 2019 Xiamen conference of a group of human activists. Xu and Ding have had decades' long reputation and remarkable influence in promoting civil liberty in China, having had previous various imprisonments.
In sentencing the 1st Defendant Professor Benny Tai of the 45 Defendants, the three judges of the Hong Kong Court have adopted a starting point of 15 years for his principal role, then given the credit of one-third discount for his early guilty plea, passed a sentence of 10 years. This level of penalty would equate Professor Tai with some China's prominent dissidents such as Liu Xiaobo, Qin Yongmin, Xu Zhiyong and Ding Jiaxi.
The three judges have adopted a middle line of the aforesaid second band of 3 to 7 years, which is the sentence applied to the rest of the defendants. Since many of them had entered early guilty pleas, and pursuant to the usual sentencing practice of one-third discount from the starting point, as a result many of them have now received (with some upward and downward variations) in the region of 50 months.
Those who had pleaded not guilty and chosen to fight through the trial proceedings are now given (again with some variations) in the region of 7 years.
This being the first case of Subversion in Hong Kong, the scale of penalties inflicted by the court despite some variations appears to be more severe than that in China's court.
In their Reason for Sentence, little weight has been attached to the fact that many of the defendants had had limited participation in the "35+" scheme and their role minimal and inactive. The three judges apparently have not considered that the statutory lowest band of penalty of maximum 3 years should apply to several meritorious defendants.
What now seems clear is that the NSL being a demonstrably sharpened legal weapon will thereafter serve the purpose of cracking down on the freedoms of political activities, and expression of belief and opinions in Hong Kong. As said, in the trial proceedings the judges have repeatedly warned the defence against trying to argue on the rights and merits of their political objectives of building a better society: "...I have no problem that you (Defence) make your speech outside, but not in my court!" What the judges have stopped short of saying is that hereinafter the hard fact will be that when the people make their political speech outside the court, they will be arrested by the police, and the prosecution will use their words as evidence in court against them, and the court will find the speakers guilty of what was said without they being given a chance to defend and justify their political objectives.
Under the shadow of the National Security Law, Hong Kong's political freedom, freedom of speech, and judicial independence have rapidly assimilated with mainland China. The once-treasured diversity of voices is now being systematically silenced under the guise of the rule of law.