Hong Kong man convicted of secession files first legal challenge against Article 23 law

Ex-delivery worker Adam Ma – known as the ‘second-generation Captain America’ – asks High Court to order his immediate release

Hong Kong’s Article 23 national security law

Brian Wong

Published: 2:49pm, 24 Jun 2024

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A man convicted of inciting secession has filed the first legal challenge against Hong Kong’s domestic national security law, claiming a decision to bar his early release from prison is unfair and a violation of his fundamental rights.

Former food delivery worker Adam Ma Chun-man asked the High Court to order his immediate release after the prison service declined to grant him a good behaviour reduction on his five-year sentence on the grounds that a contrary decision would not be in the nation’s interests.

As a general rule, a prisoner’s sentence can be cut by a third for good conduct while in custody.

But the Safeguarding National Security Ordinance, mandated under Article 23 of the Basic Law, the city’s mini-constitution, stipulates that a prisoner convicted of national security offences “must not be granted remission” unless the commissioner of correctional services is satisfied the move will not compromise national security.

In a writ made available for public inspection on Monday, Ma’s lawyers said authorities’ discretion bestowed by the new law was so wide and uncertain it was prone to abuse.

They said national security offenders would have no realistic prospect of early release for reasons inconsistent with their reformation and social rehabilitation.

The writ also argued the new threshold effectively introduced an “ideology conversion” scheme to coerce conformity to the government’s views and policies against one’s dignity.

Lawyers also took issue with what they considered to be the retrospective implementation of the new rule, noting Ma had been cleared for early release as early as February 24, a month before the ordinance took effect.

“Constitutional rights do not stop at the prison gates,” they wrote in the 50-page filing.

“The new [rule] is not imposed as a general measure to pre-empt possible future offences or to facilitate rehabilitation, but purely constitutes an additional penalty to those convicted of offences endangering national security.”

The writ added that the prison service’s reversal of the decision for Ma’s early release was also tainted by its failure to give the prisoner a fair opportunity to be heard, assisted or have the reasons explained to him.

The writ was filed with the court and made available for public investigation. Photo: Sun Yeung

The High Court filing said Ma was told about his early release being denied on the evening of March 23, shortly before he spent the night and the next day in hospital over purported concerns for his mental condition.

The ex-delivery worker received the written reasons for the correctional services’ verdict only after he wrote to appeal against the decision on March 25, the court was told.

The reasons, provided by a committee tasked with the assessment of inmates convicted of a national security offence, concluded “no information shows that if remission is granted to Mr Ma, he will not be detrimental to national security”.

While the committee did not identify any mental or psychological issues with Ma, it found the inmate “was not enthusiastic in participating in rehabilitation programmes” and “would not reveal his genuine feelings”.

Known as the “second-generation Captain America” for dressing as the Marvel character in anti-government protests, Ma was convicted and jailed for promoting Hong Kong independence through the chanting of slogans in public and in media interviews.

The act is banned by the national security law imposed by Beijing in June 2020, which also criminalises subversion, terrorism and collusion with foreign forces.