Prosecutors ask Hong Kong court to consider Chinese law in jailing Tong Ying-kit

Mainland Chinese law should be taken into account when sentencing Tong Ying-kit, the first person convicted under Hong Kong’s national security law, prosecutors have told the presiding High Court judges.

The prosecution submitted a reference book on China’s criminal code on Thursday to help the court understand how minimum sentencing was used in the mainland’s legal system, which is separate from Hong Kong’s. Prior to the introduction of the national security law, very few criminal offences in Hong Kong came with a mandatory minimum penalty.

The judges replied that they would follow their usual approach to interpret sentencing rules. Tong will receive his sentence at 3pm on Friday.

Tong, 24, was convicted of inciting secession for driving around on a motorcycle on July 1, 2020, while flying a flag with the protest slogan “Liberate Hong Kong, Revolution of Our Times”. He was also found guilty of terrorism for colliding with police officers, which injured three of them.

The court says it will stick to its usual rules of statutory interpretation.

On Thursday, the prosecution and defence teams argued over which legal rules would apply in deciding Tong’s punishment. Barrister Clive Grossman SC said the court should “start afresh” in its approach to sentencing, as there was little reason to refer to cases from other jurisdictions.

Prosecutor Ivan Cheung suggested that the court had to “refer to the position under [Chinese] law as well” when trying to understand “fixed-term imprisonment”, a phrase found in Hong Kong’s security legislation. He said the national security law mandated minimum sentences, and the court could not reduce the sentence below the stated minimum under general circumstances.

“We draw support from the PRC position,” Cheung said, citing a mainland Chinese text containing legal commentary on the criminal code of the People’s Republic of China.

After a lengthy deliberation by the three-judge panel, Judge Anthea Pang said the court would follow the usual statutory interpretation in understanding fixed-term imprisonment. “If need be, we will resort to the usual tools of statutory interpretation,” she said.

Outside the court, Cheung declined to reveal the title of the reference book, only saying that it was written in simplified Chinese and was similar to China’s version of Archbold Hong Kong, a practitioner’s text on criminal law.

“We have not consulted with any Chinese officials,” Cheung told reporters.

Under Hong Kong’s year-old national security law, the offence of inciting secession will result in a prison sentence of between five and 10 years if it is of a serious nature, and up to five years if it is a minor breach.

Those found guilty of terrorism will face anywhere between 10 years behind bars and life imprisonment, if they have caused serious bodily injury, death or significant loss of public or private property. In other circumstances, a terrorism conviction will result in three to 10 years in jail.

Tong is a ‘decent young man who did something very stupid’, his lawyer says.

Thursday’s hearing also saw the defence offer mitigation arguments for Tong. Grossman said that Tong regretted his actions and knew he deserved prison time. It was likely that Tong would never again get to see his grandmother, who was “dying of cancer and said she wanted one last hug” with her grandson, the lawyer said.

The court heard that Tong lived with his father and younger sister in public housing, and had been using his earnings to support his sibling. During demonstrations in 2019, Tong “did the right thing” and looked after injured people irrespective of their political views. After his arrest, he took courses in management and English while in detention, with the hope of later finding proper work in a restaurant.

“This shows what you got here is a decent young man who did something very, very stupid,” Grossman said, asking the judges to be as lenient as they could.

The defence lawyer also suggested the court take into account the fact that Tong was the first person tried under the national security law. “The warning has gone out to the community” as a result of the trial, he said.

“People now know the consequences of a breach of the national security law… It’s the widespread coverage of this case that brought home how serious this is.”

Grossman further argued that Tong’s sentences should be served concurrently, because the two offences had taken place very close in time and therefore “melded into one”. He also characterised Tong’s actions as “reckless”. However, the judges said both points were not in line with the court’s earlier findings.

The defence did not object to the court revoking Tong’s driving licence, but contested the confiscation of his helmet, mobile phone, SIM card, SD card, gas mask, vest, belt and other objects, saying that the case might go on appeal.

Court security is tight after the judges received telephone threats.

The High Court was enveloped in a heightened police presence on Thursday after the three judges presiding over Tong’s case received threats over the phone.

Following the verdict on Tuesday, a staff member in Judge Esther Toh’s office answered a call from a man who called the trio of jurists “dogs” and threatened to kill them with bombs and knives.

The judiciary said in a statement that it was highly concerned about the incident, and stressed that any attempt to put undue pressure on judges should be seriously condemned.

The Department of Justice said the police would “leave no stone unturned” in apprehending the culprit. Police classified the case as criminal intimidation and the Organised Crime and Triad Bureau is investigating. No arrest has yet been made.

By Holmes Chan

 

Day 1: Hong Kong’s first national security suspect Tong Ying-kit goes on trial
Day 2: Police fired pepper balls at Tong Ying-kit’s speeding motorbike, court hears
Day 3: Role of police arm shield in Tong Ying-kit crash under question in court
Day 4: ‘I had a feeling’ Tong Ying-kit meant to flee after crashing, says injured policeman
Day 5: Tong Ying-kit’s slogan is about ‘taking back Hong Kong from enemy’, professor tells court
Day 6: Slogan creator Edward Leung wanted to ‘build a nation for Hongkongers’, court told
Day 7: Trial debates Tong Ying-kit’s perception of ‘Liberate Hong Kong’ slogan
Day 8: Lawyers caught unawares as slogan evidence can’t be found in middle of hearing
Day 9: Tong Ying-kit purposely avoided hitting police with motorbike: defence
Day 10: ‘Liberate Hong Kong’ slogan was about uniting freedom-loving people, political scientist testifies
Day 11: Hong Kong protesters flaunted colonial flag in 2010s. What does it mean today? court asks
Day 12: National security judges sceptical of using group discussions to interpret slogan
Day 13: Prosecutors’ view on language too rigid, media scholar says at Tong Ying-kit trial
Day 14: Tong Ying-kit looked after people injured at 2019 protests, ex-boss testifies
Day 15: Lawyers debate how to prove incitement as Hong Kong’s first national security trial ends
Verdict: Hong Kong convicts Tong Ying-kit of secession, terrorism in landmark national security case

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