A Hong Kong court has blocked an independence activist jailed under the national security law from appealing for a shorter sentence.
The High Court’s Court of Appeal on Tuesday denied Joseph John, also known as Wong Kin-chung, permission to challenge his five-year jail term.
The activist was the leader of the now-dissolved Hong Kong Independence Party, which was based and registered in the UK until its disbandment in 2022.
John, a Portuguese national, was sentenced in April last year after pleading guilty to conspiring to incite secession, an offence under the Beijing-imposed national security law, between July 1, 2020, and November 1, 2022, by sharing social media posts.
His offence was categorised as “serious,” and he was given a starting sentence of six and a half years.
He was denied the full one-third discount that is customarily given to defendants who plead guilty. He was eventually sentenced to five years, instead of four years and four months if the discount had been fully applied.
The decision was in light of a top court ruling in 2023, which stated that defendants’ final jail sentence could not be less than five years if they committed a “serious” national security offence, based on an article in the national security law about minimum jail terms.
In the leave to appeal application, John’s barrister, Randy Shek, said District Court Judge Ernest Lin had erred in denying his client the discount.
He argued that John’s offence was a conspiracy offence, and the word “conspiracy” did not appear in the national security law’s article about prison terms.
Therefore, the rule did not apply to John’s offence, Shek said. He added that the section under the city’s Crimes Ordinance relating to conspiracy offences did not specify minimum jail sentences.
But the panel of three Court of Appeal judges – Jeremy Poon, Derek Pang, and Anthea Pang – shot down Shek’s argument, writing in their judgment that both incitement – the offence in the top court’s ruling – and conspiracy are attempted offences.
It would therefore not be logical for the minimum sentence rule to apply only to incitement, but not conspiracy offences, they wrote.
John was 41 at the time of his arrest. He emigrated from Hong Kong in 2014, had a Portuguese passport and was living in the UK, although he still had relatives in Hong Kong. He was the first dual citizen convicted under the security law.
Jail term ‘excessive’
According to the prosecution, John – as the leader of the Hong Kong Independence Party – was one of the managers of the party’s website and social media accounts. The accounts included Facebook, Instagram, Twitter and Telegram.
The online posts advocated Hong Kong’s designation as an independent Commonwealth nation and its “decolonisation” from China, the prosecution said.
In the leave to appeal application, Shek argued that John’s starting sentence of six and a half years was excessive. The barrister cited a number of defamation cases to support his case that views on social media create only fleeting impressions.
But the judges shot down his argument, saying that the points of consideration in a defamation case and incitement case were completely different.
Shek also said the District Court judge had neglected the fact that the Hong Kong Independence Party’s plans – such as cancelling the Sino-British Declaration, which set the conditions of the city’s handover in 1997, and calling on the US and the North Atlantic Treaty Organization (NATO) to send troops to Hong Kong – were unrealistic and politically unreasonable.
In response, the judges wrote that the main point of criminalising incitement was to prevent crimes. Whether the content of the posts can be practically implemented or how the public reacts is not relevant, they added.
In June 2020, Beijing inserted national security legislation directly into Hong Kong’s mini-constitution – bypassing the local legislature – following a year of pro-democracy protests and unrest. It criminalised subversion, secession, collusion with foreign forces and terrorist acts, which were broadly defined to include disruption to transport and other infrastructure.
The move gave police sweeping new powers, alarming democrats, civil society groups and trade partners, as such laws have been used broadly to silence and punish dissidents in China. However, the authorities say it has restored stability and peace to the city.
