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- 3 - A A B B 2. C D The prosecution alleged that the applicant committed “incitement to secession”, contrary to Articles 20 and 21 of NSL, and the particulars of offence are as follows: E G H I D “[The applicant], between 15 August 2020 and 22 November 2020 (both dates inclusive), in Hong Kong, incited other persons to organise, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification, namely separating the Hong Kong Special Administrative Region from the People’s Republic of China or altering by unlawful means the legal status of the Hong Kong Special Administrative Region.” F 3. C The evidence adduced by the prosecution included: E F G H I J J (1) the facts admitted by both parties pursuant to section 65C of the Criminal Procedure Ordinance2; K 3 K L L (2) a total of 18 video clips downloaded by the police from the internet,4 a total of two video clips recorded by the police,5 M and the transcripts of the video clips;6 N O (3) N (a) placard, with a defiled bauhinia emblem and the printed words, “香港人要獨立建國！香港人要取回主導權！抵抗 P M O P 赤化，唯有獨立香港人，建軍！建國！” ( Hongkongers Q Q to build an independent state! Hongkongers to regain the R R S 2 Cap 221 of the Laws of Hong Kong. 3 Prosecution exhibits P30 and P30(a). 4 They were prosecution exhibits P1 to P10 and P12 to P19 respectively. video clips P7 to P19 in court. T U V 5 Prosecution exhibits P11 and P12. 6 Prosecution exhibits P1a to P19a. S The prosecution played T U V

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HKSAR v. Ma Chun Man

Case Law

Country

Hong Kong

Country Location

Latitude: 22.3964

Longitude: 114.1095

Country Location (linked Case Law): Hong Kong

Decision Date: Aug 3, 2022

Case Status: On Appeal

Case Outcome (Procedural)

Affirmed Lower Court

Case Outcome (Disposition)

Judgement in Favour of Plaintiff
Law or Action Upheld

Keywords

Digital Rights
Freedom of Association and Assembly / Protests
National Security
Political Expression

Judicial Body: Appellate Court

Court Name: High Court of the Hong Kong Special Administrative Region

Case Number: [2022] HKCA 1151

Case Summary: The High Court of the Hong Kong Special Administrative Region (Court of Appeal) upheld a Trial Court’s decision regarding a case of “incitement to secession” under the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. The Applicant, by organizing events, chanting slogans, and using social media platforms, actively promoted the idea of Hong Kong independence, leading to his conviction. Despite arguments challenging the offense’s seriousness and the sentence’s appropriateness, the High Court affirmed the trial court’s classification of the case as “serious” under Article 21 of the NSL. This classification was based on various factors, including the deliberate nature of the Applicant’s actions, the calculated targeting of sensitive dates and locations, and the potential societal impact of his incitement. Although the High Court recognized the relatively low culpability of the Applicant within the “serious nature” category, it determined that a starting point of 5 years and 3 months for sentencing was appropriate, ultimately reducing the sentence imposed by the Trial Court to that duration.

Note: The Applicant, Ma Chun Man, has challenged the constitutionality of the National Security Law before the Hong Kong Court. Ma Chun-man, convicted for inciting secession, was set for early release on March 25, 2024, but had it revoked under a new national security law enacted just days earlier. His lawyers are challenging this decision, arguing it violates his rights, lacks procedural fairness, and effectively creates an “ideology conversion system.”

Case Significance: Contracts Expression

The ruling contradicts the freedom of expression without striking a proper balance between individual rights and national security concerns. By upholding a lengthy prison sentence for peaceful political speech, the court has effectively criminalized the mere advocacy of ideas, even in the absence of any violence or concrete threat to public order. The ruling takes an expansive view of what constitutes “incitement to secession,” encompassing slogans, public discussions, and social media posts that express dissenting political views. This broad interpretation of the National Security Law creates a chilling effect on free speech, potentially silencing legitimate political discourse and peaceful activism. The Court’s emphasis on the “seriousness” of the offense based largely on the content and potential influence of the speech, rather than any actual harm caused, sets a dangerous precedent that prioritizes state control over individual liberties. By failing to require a clear and present danger to national security before imposing such severe penalties, the ruling effectively suppresses political dissent and undermines Hong Kong’s tradition of free expression without adequately justifying such restrictions as necessary or proportionate in a free society.

The decision establishes a binding or persuasive precedent within its jurisdiction.

Source URL: Global Freedom of Expression

Collection

Columbia

Date Updated: Oct 18, 2024

Primary Documents

Judgment.pdf
English
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CYRILLA: Global Digital Rights Law

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HKSAR v. Ma Chun Man

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