Hong Kong nationwide safety legislation: leading court’s landmark ruling on sentencing produces lawful uncertainties, gurus say

“The implication is that for individuals defendants who are taking into consideration to plead guilty, they have to be encouraged that a mere responsible plea, or other mitigating things, would not lower the remaining sentence to significantly less than the approved minimum amount sentence, until they tumble in just one of the three categories set out in Write-up 33 of the nationwide protection law,” Johannes Chan Gentleman-mun, former regulation dean of the University of Hong Kong (HKU), instructed the Post.

Report 33 stipulates the court can impose a lighter penalty, minimize a sentence or disregard a small criminal offense if a defendant “voluntarily discontinues the commission of the offence” and “effectively forestalls its consequences”, voluntarily surrenders, stories on an offence fully commited by another person else or assists in solving other countrywide protection situations.

In the large-profile subversion trial around the unofficial principal poll, four activists and previous politicians – ex-legislator Au Nok-hin, former district councillors Andrew Chiu Ka-yin and Ben Chung Kam-lun, and businessman Mike Lam King-nam – have decided on to seem as prosecution witnesses.

Au Nok-hin leaving the Lai Chi Kok Reception Centre in April 2021. Photo: Winson Wong

“The only three disorders that generate the real impact of sentence reduction or lightening of sentence incentivise defendants to pick to report others’ probable commission of national security law offences or to become prosecution witnesses,” Eric Lai Yan-ho, exploration fellow at Centre for Asian Legislation at Georgetown University, claimed.

He explained “certainty is broken when the everyday prevalent legislation methods in Hong Kong are no more time reliable”.

“It makes a tricky posture for defendants as they would hardly ever know whether or not the court deemed the mother nature of their fee of the nationwide protection regulation just before pleading responsible,” he added. “It makes the utility of decreasing sentences right after a responsible plea grow to be extremely low.”

Nevertheless, authorized scholar Albert Chen Hung-yee from HKU disagreed, arguing the degree of uncertainty was negligible as judges in standard felony cases could not consider handing down the maximum jail conditions stated in the legislation in any case.

Hong Kong nationwide protection law enforcement problem brothers of required activist Anna Kwok

Sentence reductions would still be useful for defendants underneath the new benchmark, as they could only pick whether or not to admit their demand primarily based on their likelihood of acquittal, relatively than reduction in the penalty granted, he reported.

“First of all, the defendant wouldn’t know if their criminal offense was considered significant. If it wasn’t, a bare minimum penalty would not apply,” Chen mentioned.

Dismissing the idea that this arrangement would drawback defendants whose sentencing would start off at the decreased close of a penalty band, Chen explained defendants experienced no way of gauging where the starting up position of their sentence was.

But Chen, at the exact same time, cautioned that getting a prosecution witness would not automatically fulfil the requirements of Post 33 for a bigger reduction in the sentence.

“Being a prosecution witness inside the very same scenario [with multiple defendants] may possibly not fulfil clause three of Short article 33,” Chen stated.

Hong Kong should not choose tricky line on ‘soft resistance’, legislation professor suggests

Former director of public prosecutions Grenville Cross also explained this 7 days that the conditions for a larger reduction in the sentence less than Article 33 had been “listed clearly devoid of reserve”, and the courtroom could only take into consideration lessening a sentence further than its minimal necessity immediately after perusing related variables less than the provision.

But Cross extra this could necessarily mean that even if a defendant fulfilled the situations listed in the provision, pleading responsible could possibly not warrant a just one-3rd reduction.