Grenville Cross

Opinion | Why Hong Kong’s new national security law includes mandatory minimum sentences

The introduction of minimum sentences for some offences under the national security law is unusual for Hong Kong, although these provisions exist in other jurisdictions for their deterrent effect

The inclusion of mitigating factors in the legislation will enable the courts to soften the impact of the mandatory sentences

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A hoarding publicising the national security law is seen beyond a Chinese national flag being held up by a pro-China activist during a rally outside the US consulate general in Hong Kong on June 26. Photo: AFP

Grenville Cross

Published: 6:00am, 8 Jul 2020Updated: 6:11am, 8 Jul 2020

A notable feature of the national security law is its use of minimum sentences for particular offences, which is new for Hong Kong. Although local laws prescribe maximum sentences, the courts have, with rare exceptions, enjoyed a wide discretion when sentencing offenders.

While, for example, adult offenders who commit murder face mandatory life imprisonment, and those guilty of unlawful possession of an offensive weapon in a public place face a term of imprisonment, which can be long or short, such sentences are very much the exception, but no longer.

In relation to subversion, for example, there are three penalty tiers under Article 22 of the national security law. Whereas a principal offender will face imprisonment for between 10 years and life, an active participant may be sentenced to between three and 10 years’ imprisonment, while a minor offender will be liable to a fixed term of not more than three years’ imprisonment or else to “short-term detention or restriction”, which leaves the door open to alternative sentences, such as community service, training centre or reformatory school.

Probably the closest thing the courts currently have in relation to tiered penalties arises in relation to certain road traffic offences, where the maximum sentence can be raised if the offence is committed in “circumstances of aggravation”, as defined.

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What you should know about China's new national security law for Hong Kong

There are, moreover, offences which can result in a higher maximum sentence when the defendant is a repeat offender. Under the Gambling Ordinance, for example, there are three sentencing levels for someone convicted of unlawful gambling in a gambling establishment, with the maximum sentence rising from three months’ imprisonment and a fine of HK$10,000 on first conviction, to six months’ imprisonment and a fine of HK$20,000 on second conviction, and to nine months’ imprisonment and a fine of HK$30,000 on third conviction.