The first person convicted under Hong Kong’s national security law was sentenced on Friday to nine years in jail on two charges.
Hongkonger Tong Ying-kit, 24, was handed six and a half years after being found guilty of inciting secession. He drove around last year on a motorcycle bearing the protest slogan “Liberate Hong Kong, Revolution of Our Times”, which High Court judges said was intended to promote separating Hong Kong from China.
The other conviction, for terrorism, drew an eight-year sentence. Tong had sped past multiple police checkpoints and eventually crashed into a group of officers in Wan Chai, injuring three of them, in the July 1, 2020, incident.
The two jail terms will overlap partially, giving Tong an overall sentence of nine years. The judges also revoked his driving licence for ten years.
“We consider that this overall term should sufficiently reflect the defendant’s culpability in the two offences and the abhorrence of society, at the same time, achieving the deterrent effect required,” the judges wrote in their 15-page ruling.
Lead defence lawyer Clive Grossman SC told reporters that Tong would file an appeal. Another member of the defence team, barrister Lawrence Lau, said his client wanted to thank the public for their concern and support.
“Time will pass quickly. I will hang in there, and so will all of you, just like Hong Kong’s athletes,” Lau quoted Tong as saying in Cantonese.
The High Court accepted none of the mitigating factors proposed by the defence.
In delivering the sentence on Friday, the three-judge panel revealed that Tong had written a letter to the court as part of the mitigation process. The defendant conveyed his remorse and said he realised that political views could not override human decency, the judges said. “He also expressed the hope that the society might put aside hatred.”
Notwithstanding his remorse, the judges said they could not reduce Tong’s sentence as a result.
“If he had pleaded guilty, that would have been the greatest manifestation of such remorse and appropriate reduction in sentence would have been available to him,” they said. It was within Tong’s right to plead not guilty, but having taken that option, he could not rely on remorse as a mitigating factor, they added.
In other letters addressed to the court, Tong’s father said his son was easily affected by politics and had commited his crimes because of “bad publication”, while Tong’s aunt blamed fake news for his actions. The messages, written by friends and family, showed him to be a “simple-minded and kind-hearted person as well as a filial son”, the judges said.
The court voiced sympathy for Tong’s family but would not use that as a reason to lessen his penalty. It acknowledged that Tong was the family’s main breadwinner, his mother was in poor health and his grandmother was advanced in years, but “these are matters which the defendant should have thought about before embarking on his criminal acts”.
The court also noted that, apart from a few minor traffic offences, Tong was previously of good character, but that was not a mitigating factor in the face of serious offences.
National security judges explain how they categorise Tong’s actions.
The three judges said that, of the two categories of sentences that could be imposed for inciting secession, Tong belonged to the more serious category. They disagreed with an earlier defence argument that only effective, one-on-one incitement should be considered serious.
“[Tong] was not a lone protester quietly carrying a flag bearing the slogan amongst a sea of protesters,” they wrote. “He deliberately challenged a number of police checklines in order to attract as much attention to the secessionist message on the flag as possible and to leave a great impact and a strong impression on people.”
Another factor adding to the seriousness of the offence was that Tong had “deliberately picked” the date, time, place and manner of his act. However, the judges decided that his offence of inciting secession, though serious, was “not the worst case of its kind”, because he had acted alone and only called for separatism in general terms.
As for the terrorism charge, the judges said Tong’s “calculated and deliberate acts” created a very dangerous situation for road users and left three police officers injured.
However, Tong’s actions fell into the less serious legal category for terrorism, warranting a jail term of three to ten years. This was because he did not cause serious bodily injuries, the court said.
On Thursday, Grossman had argued in mitigation that Tong was not trying to seriously injure or kill police officers, and that the injuries suffered by the three did not involve any bone fracture and required no operations.
In the same session, prosecutors had asked the court to consider mainland Chinese law when sentencing Tong, but that suggestion was not taken up. The judges said in their sentencing document that they “did not find it helpful to refer to the sentences passed in the other jurisdictions”.
Police disperse onlookers wishing to see off Tong.
At the High Court on Friday, Tong’s sister burst into tears upon hearing the sentence, and his family called out: “Hang in there.” “You all hang in there too,” Tong replied from the dock. Outside the courtroom, a supporter shouted: “We will wait for your release, Ying-kit!”
Onlookers gathered near a court entrance hoping to see the prison van carrying Tong, but most were dispersed by police. Officers cleared a footbridge outside the Pacific Place shopping centre, saying that the people gathered there might have broken social distancing regulations. They also conducted checks and body searches around the vicinity.
Earlier in the day, about a dozen government supporters showed up with placards to demand a harsh penalty. Some displayed a banner by the One Heart Hong Kong Union reading, “Eradicate secession, heavily penalise terrorism”.
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
Mitigation: Prosecutors ask Hong Kong court to consider Chinese law in jailing Tong Ying-kit