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- 2 - A B B Article 21 of the Law of the People’s Republic of China on 1. C D A Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”) provides that a person who incites others to commit C D secession shall be guilty of an offence: E E “If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances of the offence committed by a person are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.” F G H G H I I J F In this application for leave to appeal against sentence, this Court has to J deal with the following issues: K K (1) L whether the circumstances of the offence of “incitement to L secession” committed by the applicant, Ma Chun Man, were “of a serious nature” or “of a minor nature” under Article 21; M and N O (2) even if they were of a serious nature, whether the sentence of imprisonment of five years and nine months imposed by the P M N O P trial judge1 on the applicant was manifestly excessive. Q Q R S A. Trial A1. Prosecution Case V S T T U R 1 District Judge Stanley Chan. U V

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HKSAR v. Ma Chun Man

Case Law

Country

Hong Kong

Country Location

Latitud: 22.3964

Longitud: 114.1095

Country Location (vinculado Case Law): Hong Kong

Decision Date: 3 ago 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 Name and URL: Global Freedom of Expression

Collection

Columbia

Date Updated: 18 oct 2024

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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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