Editor’s note: The following are opening remarks of Grenville Cross SC at the Hong Kong National Security Law Legal Forum hosted by the Department of Justice, on Monday, July 5, 2021.
Sentencing of offenders
Although it is over a year since the National Security Law (NSL) was enacted, nobody has yet been sentenced for an offence under it. As the NSL contains provisions which are novel, their precise standing has, therefore, yet to be determined. One striking feature of the NSL is its deployment of minimum sentences, which is rare.
When courts sentence offenders, they have to weigh up numerous factors, often competing. They need to decide what things the sentence needs to prioritize, and what not, although the more serious the offence the less leeway they enjoy. If, for example, the offence involves a severe crime, like armed robbery, syndicated corruption, or child molestation, a sentence which marks the abhorrence of right-minded members of the public will be unavoidable, and the impact of the mitigating factors will, at most, be minimal.
A court may have no choice but to impose a severe sentence as a deterrent to others, as this can help to prevent crime. But that is not the only way of preventing crime, and if an offender, particularly if young, can be reformed, this will also help to protect the community. In recent times, greater emphasis has been placed by both the legislature and the courts on rehabilitative sentences, and a lenient sentence may turn an offender away from a life of crime. Sentencing, however, is rarely simple, and some judges say that in comparison with the sentencing of an offender the trying of him is easy.
Although Hong Kong’s laws prescribe maximum sentences, the courts, with very few exceptions, enjoy a wide discretion when sentencing offenders. Although an adult offender who is convicted of murder faces mandatory life imprisonment, and an adult offender convicted of unlawful possession of an offensive weapon in a public place faces a mandatory sentence of imprisonment, which may be long or short, such sentences are rare. However, there are certainly offences for which the legislature has indicated the levels of sentencing it expects the courts to impose, and the NSL is, therefore, in good company.
Tiered penalties: NSL Art. 22
Under NSL Art.22, there are three penalty tiers in relation to the offence of subversion, and these are also reflected elsewhere in respect of other national security offences (Art.21, secession; Art.27, terrorism; Art.29, collusion). Whereas a “principal offender” convicted of subversion will face imprisonment of between 10 years’ imprisonment and life imprisonment, an “active participant” may be sentenced to anywhere between 3 and 10 years’ imprisonment, while “other participants” will be liable to a fixed term of not more than 3 years’ imprisonment or else to “short-term detention or restriction”, which leaves the door open to alternative sentences, including a lesser term of imprisonment, a detention centre order, a training centre order, a community service order or a reformatory school order (NSL Art.64). This means, therefore, that the sentencing discretion of the courts in regard to national security offences is reduced in comparison with many other types of crime, and the use of “tiered penalties” serves to underline the gravity with which such criminality is viewed.
Although some commentators have asserted that the “tiered penalties” in NSL Art.22, and elsewhere in the Law, are alien to our criminal justice system, this is incorrect. Different penalties for the same offence already exist in some other situations, for example, under the Gambling Ordinance (Cap.148). Whereas the offence of unlawful gambling in a gambling establishment attracts a maximum sentence of 3 months’ imprisonment and a fine of US$10,000 on a first conviction, this rises to 6 months’ imprisonment and a fine of US$20,000 on a second conviction, and to 9 months’ imprisonment and a fine of US$30,000 on a third conviction. Again, under the Firearms and Ammunition Ordinance (Cap.238), someone who is convicted of possession of an imitation firearm is liable to 2 years’ imprisonment on a first conviction, although this rises to 7 years’ imprisonment if, within 10 years, he or she commits another such, or a related, offence.
The reason why mandatory sentencing is so rare is that the view has always been taken that sentencing is an art and not a science, and that, in achieving a just outcome, the discretion of the trial courts should not be overly fettered. This means that they should, so far as possible, be free to adjust the sentence upwards or downwards, taking account of the aggravating and mitigating features, and after having had regard to such things as the circumstances of the offender, the impact of the crime upon the victim, and the prevalence of the offence, which may necessitate a sentence which will deter others. Of course, some offences are subject to sentencing guidelines issued by the appellate courts, and these obviously limit the discretion of the trial courts. But, even then, the Court of Appeal has been at pains to emphasize that guidelines are not strait-jackets, and that a judge or magistrate may depart from them for good reason.
Secondary parties: NSL Art.22 & Art. 23
Under the general criminal law, secondary parties, or accessories, are liable to be prosecuted and convicted of the same offence as that committed by the principal offender. This means that an aider, abettor, counsellor or procurer is liable to be dealt with at trial and punished in the same way as the principal offender. Although a secondary party whose culpability is below that of a principal may receive a lesser sentence, this is by no means a given, and they will each face the same maximum penalty for the offence of which they have been convicted.
However, under NSL Art.23, in relation to subversion (and also under Art.21, in relation to secession), a different, more lenient, approach, applies. If somebody incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission of the offence of subversion under Art.22, then he or she is guilty of an offence, although the sentence is not aligned to that of the principal. If the circumstances of the offence are of “a serious nature”, the offender will face a term of imprisonment of between 5 and 10 years. But if the circumstances are of “a minor nature”, the offender will face imprisonment of up to 5 years, or else short-term detention or restriction.
On its face, therefore, the NSL has introduced a sentencing approach for secondary parties convicted of national security offences which is milder than that which exists in relation to other types of accessories under the general criminal law. The secondary party and the principal no longer face the same maximum sentence, and a world of difference, therefore, now exists in terms of their possible punishments. This is not easy to rationalize, particularly as, for example, the culpability of a secondary party who incites the commission of an offence will sometimes be on a par with that of the principal who executes it.
That the NSL has moderated the penalties imposable on secondary parties is surprising, given its objectives, but the wording is clear, and leaves no room for misunderstanding.
Categories of offender: NSL Art.22
Before parting with NSL Art.22, I should deal with an issue which may be challenging. The NSL does not, unlike many local laws, contain an interpretation section at its outset, and the meaning of the terms used in NSL Art.22 to describe the culpability of the three different types of offenders, namely, “principal offender”, “active participant”, and “other participant”, will, therefore, need to be resolved by the courts. Their determinations will be crucial, and will affect the sentencing band under which the offender is to be punished. A mastermind of the subversive activity, or a leader on the ground, will undoubtedly be a “principal offender”, while culprits who assume non-leadership roles, such as facilitating the crime or providing back-up support, will presumably fall into the category of “active participant”. As regards the class of miscreant described as “other participants”, this presumably covers peripheral figures, perhaps operating on the sidelines to assist the offence in a less than significant way. Since the actual sentence to be imposed on the offender depends so much upon the label attached to his or her culpability, the courts will undoubtedly face legal arguments on the issue, and they will be required to make rulings. In some cases, this may not be easy, particularly where the criminality in question is on the borderline between two distinct categories, and the degree of culpability is disputed.
This means, therefore, that prosecutors must be in a position to categorize the criminality of each defendant in advance of trial, and then to satisfy the court by evidence as to the legitimacy of their various categorizations. This is a new situation, and everybody involved will need to prepare themselves.
Mandatory sentencing v judicial discretion
Only one case has arisen so far in which sentencing under the NSL has been judicially considered, and that occurred when the accused person argued in the High Court, in a habeas corpus application arising out of a refusal of bail, that mandatory sentences of imprisonment neutralized the exercise of independent judicial discretion. This submission received short shrift, with the judges pointing out that, as a matter of principle, it is not objectionable for the legislature to prescribe a fixed punishment, such as life imprisonment for murder, or a range of sentences, including a maximum and minimum sentence, for a particular offence, leaving it to the judge to determine the appropriate sentence on the facts of the case. The NSL offence provisions, they ruled, only prescribed the ranges of sentence for convicted persons, and not the actual penalty to be imposed, and this meant there was no impermissible interference with the exercise of judicial powers in Hong Kong.
Indeed, mandatory minimum sentences are by no means unknown elsewhere in the common law world, and they may perform a useful function. They can and do provide a potent deterrent to those who are contemplating a crime, and this is an important consideration when the crime in question is becoming prevalent in a particular jurisdiction. In Australia, for example, the federal parliament has recently adopted a minimum sentence of 6 years’ imprisonment for sex offenders who abuse children overseas. In Canada, some of its firearms offences are punishable with a minimum sentence of 4 years’ imprisonment. It can be seen, therefore, that the minimum sentences contained in the NSL, while not common in our domestic law, are by no means out of step with the sentencing patterns which have emerged in other common law jurisdictions.
Mitigation: NSL Art.33
After a suspect has been convicted, mitigation invariably plays a role in determining the sentence. However, the more serious the offence the less its impact is likely to be. What is and is not relevant to mitigation has been determined by the courts in numerous judgments, and these indicate the extent to which reliance can be placed upon particular factors. What, however, is highly unusual, if not unprecedented, is for a particular law to incorporate specific mitigating factors for the sentencing court to consider, even though aggravating factors have sometimes been included, notably under the Road Traffic Ordinance (Cap.374).
However, NSL Art.33 contains a novel provision by which the trial court may impose a “lighter penalty”, or the penalty may be “reduced”, or, in the case of a minor offence, “exempted”, in three situations. These arise: firstly, if the accused person has, during the commission of the offence, voluntarily discontinued his or her involvement or effectively forestalled its consequences; secondly, if the accused person has voluntarily surrendered himself or herself and given a truthful account of the offence; or, thirdly, if the accused person has reported an offence committed by others, or provided information which assists the authorities in solving another criminal offence. Although the difference between a court imposing “a lighter penalty”, on the one hand, and the penalty for the offence being “reduced”, on the other, is not explained, the drafters obviously saw them as distinct entities.
As regards the “lighter penalty”, this apparently refers to a lower sentence within the specified tier. So, using subversion as an example, if a court decides to take 10 years’ imprisonment, which is the maximum for an “active participant” in subversion, as the starting point for sentence, this may be lowered if any of those three mitigating factors is present. What, however, is unclear is whether it can be further reduced for other mitigating factors, such as clear record, old age, or mental disorder, and it is certainly arguable that it cannot, given that the drafters have only singled out three factors as a basis for sentence reduction.
I suspect, however, that the courts will try to find a way of ensuring that other mitigating factors can still be taken into account when a “lighter penalty” is imposed, albeit to a lesser extent, perhaps by holding that the effect of Art.33 is to require that greater emphasis is placed upon the three factors it highlights, without wholly excluding the others. The effect of NSL Art.33 on other forms of mitigation will need to be determined, and, if the courts find this problematic, an interpretation by the NPCSC, as contemplated by NSL Art.65, may be necessary.
Turning to the “reduced” penalty, this apparently refers to a penalty below the minimum sentence in the specified tier. So, for example, in a case where the minimum sentence for an “active participant” in subversion is 3 years’ imprisonment, the presence of any one of those three mitigating factors will provide the court with a discretion to reduce the sentence to below 3 years. This seems to suggest, therefore, that other mitigating factors cannot also reduce the sentence below 3 years, and should be disregarded.
Exempted penalty: NSL Art.33
One other issue arises in NSL Art.33, and this concerns the provision that, if the offence is “minor” in nature, the penalty may be “exempted” if any of the three mitigating factors is present. This, presumably, means that the court, having found the accused person guilty, can then impose no sentence at all on him or her. The immediate problem with this, however, is that it apparently conflicts with the long-established principle that a conviction comprises of two elements, namely, a finding of guilt plus a sentence. If, therefore, an accused person has not been sentenced for an offence of which he has been adjudged guilty, certain consequences inevitably follow. There is, for example, no conviction to enter on his criminal record, he has no prior conviction to reveal when he seeks employment, and he cannot plead autrefois convict if he were to be charged again with the same offence.
There may, however, be a way around this dilemma, and it involves the absolute discharge. If the NSL Art.33 exemption from penalty is equated by the courts with an absolute discharge, it may be possible to rationalize it within the existing sentencing framework. An absolute discharge, notwithstanding its lack of punitive impact, nonetheless ranks as a sentence in its own right. An absolute discharge, though comparatively rare, is imposed in circumstances where the court concludes that no actual penalty is necessary.  This generally arises if the offence is trivial or is otherwise devoid of moral culpability, as with some strict liability offences, but there seems to be no legal reason why it cannot also be deployed in the situation contemplated by NSL Art.33, when the penalty for a minor offence is exempted.
Only time will tell if my thoughts on NSL sentencing reflect the stances the courts adopt in their adjudications, and there is certainly room for different interpretations. If some of the unresolved issues I have touched upon turn out not to pose any real difficulty in practice, it will be a great relief. Although the NSL sentencing regime is clearly tough, it also seeks to gauge degrees of culpability and to punish offenders according to their actual criminality, which they, at least, will find reassuring. Once the new sentencing regime is fully functional, it will, hopefully, make Hong Kong a safer, and, therefore, a happier, place in which to live.
Grenville Cross is a senior counsel, law professor and criminal justice analyst, and was previously the director of public prosecutions of the Hong Kong SAR.
The views do not necessarily reflect those of China Daily.
 Offences Against the Person Ordinance (Cap.212), s.2
 Public Order Ordinance (Cap.245), s.33(2)
 Attorney General v Yau Koon Yau  4 HKC 685.
 Criminal Procedure Ordinance (Cap.221) s.89.
 R v Wong Hoi  HKLR 386; R v Wong Kwai Fun  2 HKLR 171; R v Stringer  QB 160.
 HKSAR v Tong Ying Kit  4 HKLRD 382,  HKCFI 2133.
 Sentencing in Hong Kong (9th ed., LexisNexis) Ch.30.
 HKSAR v Ho Tung Man  3 HKC 375.
 R v Fung Chi Wood  1 HKLR 654.
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