2024.11.12

In the first case of conspiracy to subvert state power in Hong Kong, 45 defendants found guilty will be sentenced on November 19 at the West Kowloon Magistrates’ Courts (acting as the High Court). The law defines three sentencing tiers for the offense: “principal actors,” “active participants,” and “other participants,” with minimum sentences set at ten years and three years respectively.

Three designated judges will first decide whether to apply these sentencing tiers; if so, they will determine which tier applies to each defendant and set the starting point for sentencing. For the 31 defendants who pleaded guilty, reductions of up to one-third are allowed, but under the “Lui Sai Yu case,” sentences cannot be reduced below the minimum tier limit; however, accomplice witnesses may receive additional reductions, potentially below the minimum. Additionally, due to new regulations under Article 23, defendants of national security crimes may not qualify for sentence reductions for good behavior in prison.

Each defendant has already presented their stance on sentencing (see details below), and their time spent in detention—from 70 days to over three years and eight months—draws significant attention as to how much longer they will remain imprisoned.

The sentencing tiers will affect the starting point for sentences.

This case’s “conspiracy” charge derives from the Criminal Code, while the “subversion of state power” charge comes from the National Security Law, which sets three tiers for sentencing: “principal actors or serious offenses” may face imprisonment from ten years to life; “active participants” can be sentenced to three to ten years; and “other participants” may receive up to three years or be placed under detention.

During the mitigation, some defense barristers contested that the charge of conspiracy does not equate directly to subversion, hence the minimum sentencing limits should not apply directly. The three designated judges, Andrew Chan Hing-wai, Alex Lee Wan-tang, and Johnny Chan Jong-Herng, will need to decide whether to apply these sentencing tiers; if adopted, they will determine which tier each defendant falls under, directly influencing their sentence starting points.

The prosecution has argued that the court should consider each individual’s role in the case, noting that “principal actors” should be evaluated based on their participation, organization, command of the overall plan, degree of involvement, and actual impact; “active participants” should be considered based on the degree to which the defendants actively and eagerly participated; and the rest would fall under “other participants.”

According to the prosecution, among the 45 convicted, Benny Tai, Au Nok-hin, Andrew Chiu, Ben Chung Kam-lun, and Gordon Ng Ching-hang were organizers of the primary election, while the remaining 40 were participants. The prosecution firmly believes that it would be unacceptable not to classify the organizers as “principal actors.” As for the three initiators of the “No Regrets” declaration—Owen Chow Ka-shing, Sam Cheung Ho-sum, and Fergus Leung Fong-wai—the defense argues that they do not qualify as “principal actors.”

A defense barrister also noted that this case does not involve force, and setting too high a starting point could constrain the court’s sentencing flexibility for similar future crimes involving violence, such as attempted kidnapping or detention of legislators, which would severely disrupt the legislative assembly’s operations.

31 People Plead Guilty, Potential Limits on Sentence Reductions

In Hong Kong case law, defendants who plead guilty in a timely manner can receive a reduction of up to one-third of their sentence (as stated in Legal Article 101). However, certain crimes under the National Security Law have specified minimum sentences, which limit the extent of sentence reduction for guilty pleas.

The Court of Final Appeal, in the case of “Liu Sai-yu,” established that reductions for guilty pleas cannot bring the sentence below the minimum limit of the sentencing tier. Of the 45 convicted defendants, 31 have pleaded guilty, including Benny Tai, Joshua Wong, Tam Tak-chi, Wu Chi-wai, Eddie Chu Hoi-dick, and Alvin Yeung, 29 of whom expressed their intention to plead guilty during the pre-trial procedures. Ng Kin-wai changed his plea to guilty after the pre-trial and before the trial began, and Mike Lam King-nam did so on the day the trial started. Their reductions may be limited by the minimum limits of their sentencing tiers and may not receive the full reduction.

During mitigation, defense barristers also mentioned other mitigating factors, such as the doomed nature of the conspiracy, the defendants’ genuine but mistaken belief in the legality of their actions, and ignorance of the law. While the judge ruled these factors do not absolve the defendants of guilt and thus convicted them, these may be considered for further reduction if the judge accepts them at the sentencing stage.

4 Guilty Defendants Serve as Accomplice Witnesses, Potentially Receiving Additional Sentence Reduction

In the “Liu Sai-yu case,” the Court of Final Appeal also confirmed that conditions listed under Article 33 of the National Security Law, such as “exposing the criminal acts of others that are verified as true, or providing important clues for solving other cases,” can lead to a lighter sentence, reduced punishment, or exemption from punishment. Furthermore, the reduction can go below the minimum limit of the sentencing tier.

Guilty defendants Au Nok-hin, Andrew Chiu, Ben Chung Kam-lun, and Mike Lam King-nam became “accomplice witnesses” and provided testimony. The prosecution considers providing information to the police and testifying in court as “exposing” others, and agreed that Au and Chiu qualify for this consideration. Au and Chiu also mentioned actions that constitute “voluntary desistance from crime” under Article 33, such as actively withdrawing from the primary election.

The judge questioned the method of reduction, whether it should directly lower the sentencing tier or apply the common law maximum reduction of 50% of the sentence. Au Nok-hin’s party argued for “downgrading” as a priority, and if not applicable, then a reduction in the sentencing range.

Remaining Sentence Post-Sentencing Subject to Prison Conduct Reduction

According to “The Witness” statistics, as of the sentencing day, the 45 defendants awaiting sentencing had been in custody for over 70 days to over 3 years and 8 months. Typically, the court’s sentence minus the days already served in custody determines the defendant’s remaining sentence. However, some individuals have additional charges, and their custody days may have already been applied to offset the sentences for other offenses.

Additionally, previously after being sentenced to imprisonment, inmates could receive up to a one-third reduction in their sentence for diligent and good behavior in prison, allowing for early release. However, amendments to “Article 23” passed in March have modified the law so that individuals serving sentences for national security offenses are not eligible for this reduction unless the Commissioner of Correctional Services believes the reduction will not adversely affect national security. If an individual defendant receives this reduction, their remaining sentence could be further shortened.

If an appeal or bail application is filed, it will be handled by the Court of Appeal.

After sentencing, the focus turns to whether the Department of Justice or the defense will file an appeal against the sentence. According to Articles 81A and 83Q of the “Criminal Procedure Ordinance,” if the Department of Justice seeks a review of the sentence, it must do so within 21 days after the sentence is imposed. If the defense plans to appeal the sentence, they must file within 28 days after sentencing. Both parties may request an extension of these deadlines, but such extensions must be approved by the Court of Appeal.

For sentence appeals, both parties must obtain permission to appeal from the Court of Appeal, and they may also apply to the Court of Appeal for bail while awaiting the outcome of the sentence appeal. In other words, if any defendants wish to appeal and apply for bail, the Court of Appeal will set a separate date to address these matters.