Thread by @XinqiSu

“He asked people to keep breathing” - a #thread about today’s mitigation of the now-disbanded #StudentPoliticism members in their #NSL case of “incitement to subversion” and ballooning issue of minimum sentence and PG discount in #NSL cases.

4 members of #StudentPoliticism Wong Yat-chin, Chan Chi-sum, Chu Wai-ying and Wong Yuen-lam, pleaded guilty in July to one count of “conspiracy to incite subversion”, an offence that carries up to 10 years in jail under #NSL. Mitigation began this morning.

Before D1 Wong Yat-chin’s lawyer started, prosecutor Vincent Lee raised in court that Wong’s FB page published a post 3 days ago in which Wong wrote he had no regret. Lee asked Wong’s lawyer to clarify whether Wong was not remorseful - an element to consider for commutation.

After taking instructions from Wong, his lawyer told the court that the post was a letter Wong wrote to summarise his feelings after being remanded for one year and his “no complaint or regret” 無怨無悔 means he would not blame the society or anyone else for what he did, and…

…he did not waste his time in jail. Instead he kept studying, thinking and reflecting on himself behind bars. “He has absolutely no intention to ask other people to follow his path,” the lawyer said.

But judge Kwok Wai-kin was skeptical. Kwok said Wong’s letter…

…was “not merely expressing some feelings, he wrote, ‘keep breathing, keep thinking, living on…let’s continue the unfinished journey with our heads held high’ (好好呼吸，好好思考，好好活著…一起昂首走那未完的路), set aside what that actually means, he was asking people…

…to take actions,” Judge Kwok said. The argument did not come to any conclusion today and Kwok suggested Wong’s lawyer to discuss with his client whether a Newton Hearing would be necessary to find out about the meanings of the letter and whether Wong would give evidence.

Another important part in the mitigation is whether the defendants can enjoy the usual 1/3 discount on sentence due to their guilty plea, and whether the minimum sentence stipulated by #NSL should be fulfilled even after the discount.

This problem first arises in the case of Lui Sai-Yu, when judge Woodcock changed her sentence amid sentencing to make it above the 5-year min sentence without clarifying what sort of discount Lui enjoyed. The case is now pending appeal set to be heard next month.

This sentencing matter would affect a number of #NSL cases down the line - the Returning Valiant group of teenagers, the Student Politicism four, the 47 activists joined an unofficial pro-dem primaries, and the #HKAlliance ppl.

All these cases involved compound charges - “conspiracy to an #NSL offence” - where the conspiracy part is from pre-NSL laws in HK, and in the pre-NSL common law system in HK, seldom does minimum sentence exist while the 1/3 PG discount is a longstanding rule.

Wong’s lawyer told the court today that if the court must keep the sentence above min sentence after the PG discount, that would basically disqualify the 1/3 PG discount convention in HK and create a situation when the less serious offenders are less likely to enjoy the discount

But Judge Kwok said when the city’s Court of Appeal confirmed the 1/3 PG discount, it didn’t involve an offence with min sentence, and among all the possibilities of legislative designs, there could be one when all offenders are not entitled to discount regardless of severity.