Thread by @HKRLM_ORG

🧵THREAD: There is a lot to unpack in Woodcock’s about-face in the sentencing of Lui Sai Yu for secession (DCCC 401/2021, 29 April 2022) #Hongkong #NSL
hongkongfp.com/2022/04/29/sec…

First, it is a vivid illustration of why mandatory minimum sentences are problematic: judges are not permitted to sentence as appropriate to the facts and circumstances of each case.

As far back as 1 July 2020, #HKBA noted in their statement that “the provision of mandatory minimum sentences strips away judicial discretion in sentencing”.
hkba.org/sites/default/…

Mandatory min sentences of imprisonment are virtually unheard of in #Hongkong. The closest analogy are drug sentencing tariffs, but these can be departed from with good reason. For traffic offences, there are mandatory min sentences for disqualification, but not for imprisonment

In Tong Ying Kit (HCAL 1601/2020, 21 Aug 2020) the defence argued that mandatory min sentence in the #NSL restricts or interferes with independent judicial power of #HongKong courts in a way that is inconsistent with the provisions of the Basic Law.

The court held that there was no impermissible interference - but the Privy Council case cited expressly noted that legislated minimum sentences are uncommon

Second: It is not clear at all that the #NSL precluded reducing the sentence below the minimum, as long as the correct starting point was taken.

The prosecution relied on R v Andrew James Jordan & Ors, a judgment of the UK Court of Appeal. There the court was satisfied that Parliament was aware of guilty pleas and how they are treated. Therefore, a sentence could not be reduced below the min to reflect a plea of guilty

That UK case is clearly distinguishable. The context in #HongKong is different. There is no evidence that those who drafted the NSL were aware or had borne in mind how the common law treats guilty pleas.

There is no reason to adopt the interpretation that is more onerous to the defendant rather than one which would have given effect to the sentence that the judge herself had thought appropriate.

Certain incursions on rights are accepted in UK bc Parliament is democratically elected. #Hongkong courts have their cake and eat it: they borrow the support of restrictive common law cases, and distinguish liberal cases by claiming that the constitutional framework is different.

The importance of this judgment goes much farther than the injustice done to this particular defendant. It raises questions that will become extremely important in upcoming #NSL cases in #Hongkong:

1. Is there still any discount in NSL cases for a guilty plea? If not, that means any expression of remorse is irrelevant once one is branded an “enemy of the people”. If the discount is still applicable, judges will backward-engineer the sentence starting point

2. Prisoners’ sentences are typically shortened by a further 1/3 due to remission. Will this still be applicable? Would the #NSL again trump prison rules?

Once again, this case illustrates how there is a great lack of clarity in the #NSL - which is always used against the accused and never for their benefit.