Sam Lai and Kacee Ting Wong say it is vital to punish heinous criminal acts, safeguard national security and protect public interest

According to the 17th-century French mathematician and philosopher Rene Descartes, it is necessary that at least once in your life you doubt, as far as possible, all things. Though members of our think tank often rely on intellectual doubt to seek and extend their frontiers of knowledge, they find it extremely hard to question the wisdom of the Court of First Instance of its decision to impose a 20-year jail term on Jimmy Lai Chee-ying for two counts of conspiracy to collude with foreign forces and one count of publishing seditious materials. Our think tank strongly believes that the sentence is fair. What goes around always comes around. The three judges said they had no doubt that Lai was the mastermind of the said conspiracies and therefore deserved a heavy sentence.

Lai’s two counts of conspiracy to collude with foreign forces were in the most severe penalty band pursuant to Article 29(5) of the Hong Kong SAR National Security Law (NSL). The court found the collusion conspiracies were of a grave nature that warranted at least 10 years behind bars, compared with three to 10 years for less serious transgressions under a two-tier sentencing mechanism. Whether a case should be classified as “serious” or “minor” depends on the overall actual circumstances of the case. When the court assesses the seriousness of the circumstances of the case, the prime focus was on the offender’s acts, as well as the actual consequences, potential risks and possible influence entailed (HKSAR v Ma Chun-man, HKCA 1151).

In assessing the seriousness of Lai’s criminal acts, the court took into account the many factors laid down in Ma Chun-man. The relevant factors are: (a) the context including the society’s atmosphere in which the offense was committed; (b) the modus operandi, including the ways, acts, wording, media or platform adopted; (c) the frequency, duration and persistency of the offense; (d) the scale of the offense; (e) whether the offense was premeditated, and if so, the scale and precision of the premeditation; (f) whether violence or threat of violence was involved, and if so, the urgency and seriousness of the relevant violence or threat; (g) the number of people involved; (h) the target group(s) of the request for sanctions and the potential influence on them; (i) whether the offense actually succeeded in resulting in foreign sanctions or the risk and imminence of such sanctions; and (j) the actual or potential impact of the offense on the Hong Kong Special Administrative Region and/or the People’s Republic of China.

Before discussing the specific acts of Lai’s case, we begin by focusing on the classic principles of sentencing. The sentencing principles of retribution, deterrence, prevention and rehabilitation provide a good starting point for us to understand the sentencing process. The judges need to apply these principles to the facts of the case to see which of them has the greatest importance in the case with which he is dealing (R v James Henry Sargeant (1974) 60 Cr App R 74 at [77]). The challenge lies in identifying which of these principles are most pertinent for the case at hand, and which will achieve a proper balance in determining the type and extent of the sentence to be imposed.

In Lai’s case, rehabilitation has been put on the back burner in the sentencing process. Sentencers have correctly given priority to prevention and deterrence in this high-profile national security case. The court has sent a solemn warning against malicious plots that endanger national security. The conspiracies were not only well-planned but were meticulously premeditated, involving the use of online platforms reaching both local and overseas audiences. The activities of the parties in Count 3 took place in and outside Hong Kong. The call for sanctions, blockades, hostile activities (SBHA) did contribute to foreign governments imposing SBHA against Hong Kong as well as against officials of the central and HKSAR governments. In order to deter, the court adopted a starting point of 15 years’ imprisonment for each conspiracy in Count 2 and Count 3. Because the court found that Lai was the mastermind and driving force behind these two conspiracies, the starting point was enhanced by three years, making a provisional sentence of 18 years’ imprisonment for each of the charge.

Concerning Count 1, the court adopted 21 months’ imprisonment as the starting point. Since Lai was the mastermind of the offense, the court added two months to the 21 months’ starting point, making a provisional sentence of 23 months’ imprisonment. Having struck a balance between mitigating factors and the gravity of the three offenses, the court accepted that the combination of Lai’s old age, health conditions and solitary confinement would cause his prison life to be more burdensome than that of other prisoners. Therefore, the court deducted one month from the sentence of Count 1 and one year for each of the sentences in Count 2 and Count 3. For the sake of simplicity, we skip the totality principle. Lai was sentenced to a total of 20 years in prison.

Lai’s 20-year prison term is the harshest penalty handed down for national security offenses in the city so far. It is worth noting that under the Safeguarding National Security Ordinance (SNSO), authorities have established an assessment board to conduct a holistic review of the rehabilitation progress of prisoners convicted of offenses related to national security. The board also makes recommendations on whether granting early release to a prisoner would be contrary to the interests of national security. Ma Chun-man lodged the first legal challenge to the SNSO after being barred from early prison release. But his judicial review application was unsuccessful. His appeal to the Court of Appeal was also unsuccessful.

Although the court has discretion when selecting the most appropriate sentence for Lai and other defendants in this case, its discretion cannot be unfettered. It is worthy of note that imposition of a 20-year jail term on Lai has a legitimate foundation, taking account of the gravity of Lai’s heinous criminal acts and the necessity of safeguarding national security and protecting public interest.

Sam Lai Nuen-san is secretary-general of the Society for the Coordination and Promotion of Eastern District, co-director of district administration of the Chinese Dream Think Tank, and a district councilor.

Kacee Ting Wong is a barrister, part-time researcher of Shenzhen University Hong Kong and Macao Basic Law Research Center, chairman of the Chinese Dream Think Tank, and a district councilor.

The views do not necessarily reflect those of China Daily.