A Hong Kong man who lodged the first legal challenge to the city’s homegrown national security law after being barred from early prison release has lost his appeal.
The Court of Appeal (CA) delivered its judgment to Ma Chun-man on Tuesday, following a hearing in May.
A panel of three judges – High Court Chief Judge Jeremy Poon, Justices Derek Pang and Anthea Pang – dismissed his appeal, writing that the “deprivation of liberty” resulting from his imprisonment was “lawful.”
Ma filed an appeal application after losing a judicial review in December, in which he challenged the authorities’ decision to deny him early release based on an assessment that releasing him early would run counter to the interests of national security.
The activist, dubbed “Captain America 2.0” for carrying the superhero’s shield during the 2019 protests and unrest, was found guilty in October 2021 of inciting secession.
He was given a five-year jail term and was due for early release in March last year, in line with a mechanism that grants a one-third sentence discount to prisoners with good conduct.
But Ma was deemed ineligible because Article 23 – the local security law that came into effect two days before his intended release date – states that authorities can deny early release if they believe it would be “contrary to the interests of national security.”
‘No sense of remorse’
Under Article 23, authorities established an assessment board to conduct a “holistic review” of the rehabilitation progress of prisoners convicted of offences 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,” according to the CA judgment.
In his arguments, barrister Steven Kwan – representing Ma – said parts of the definition of national security in the local security law ordinance are “vague” and refer to a “subjective value judgment.”
The three judges wrote in their ruling that they disagreed, criticising Kwan’s arguments as “strained.”
The judges said the definition in the ordinance was “based on relevant facts and information objectively available,” adding that national security threats “may vary in character.”
They also cited background information relating to Ma’s case, including that the board considered the fact that he had written a Hong Kong independence slogan on a cell wall while incarcerated.
He was “unenthusiastic” towards rehabilitation programmes and demonstrated “no sense of remorse” for his offence, the judges said.
