HKSAR v. Lui Sai Yu

Press Summary (English)

Press Summary (Chinese)

CACC 61/2022

[2022] HKCA 1780

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 61 OF 2022

(ON APPEAL FROM DCCC NO 401 OF 2021)

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Before:  Hon Poon CJHC, Pang JA and Anthea Pang JA in Court

Date of Hearing:  13 and 24 October 2022

Date of Judgment:  30 November 2022

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J U D G M E N T

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Hon Poon CJHC (giving the judgment of the Court):

1.Article 21 of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”) establishes a two-tier penalty regime for an offence falling thereunder by reference to its severity in these terms:

“情節嚴重的，處五年以上十年以下有期徒刑；情節較輕的，處五年以下有期徒刑、拘役或者管制。”

Its English translation, which is for information only,[1] reads:

“If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances of the offence committed by a person are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.”

For present purposes, we will refer to the tier for serious offences as “the Upper Tier” and that for minor offences as “the Lower Tier” respectively.

2.The NSL provisions on penalty in Parts 1 to 4, including NSL 21, are augmented by NSL 31 to NSL 35 in Part 5. NSL 33(1) provides for three disposals to adjust an otherwise appropriate penalty when any of the three conditions specified is established, as follows:

“有以下情形的，對有關犯罪行為人、犯罪嫌疑人、被告人可以從輕、減輕處罰；犯罪較輕的，可以免除處罰：

（一） 在犯罪過程中，自動放棄犯罪或者自動有效地防止犯罪結果發生的；

（二） 自動投案，如實供述自己的罪行的；

（三） 揭發他人犯罪行為，查證屬實，或者提供重要線索得以偵破其他案件的。”

Its English translation reads:

“A lighter penalty may be imposed, or the penalty may be reduced or, in the case of a minor offence, exempted, if an offender, criminal suspect, or defendant:

(1) in the process of committing an offence, voluntarily discontinues the commission of the offence or voluntarily and effectively forestalls its consequences;

(2) voluntarily surrenders himself or herself and gives a truthful account of the offence; or

(3) reports on the offence committed by other person, which is verified to be true, or provides material information which assists in solving other criminal case.”

3.In this application for leave to appeal against sentence, it falls upon this Court to consider two principal questions. The first concerns the categorisation of the circumstances of the NSL 21 offence committed by the applicant as serious by Her Honour Judge Amanda Woodcock below (“the Judge”), which is a question of fact. The second question is one of law on the effect of the Upper Tier and NSL 33(1) in their application to sentencing of a serious NSL 21 offence.

A.  Proceedings below

4.Before the Judge below, the applicant pleaded guilty to a charge of incitement to secession, contrary to NSL 20 and NSL 21.[2] The particulars of the offence read:

“[The applicant], between the 30^th day of June, 2020 and the 24^th day of September, 2020, both dates inclusive, in Hong Kong, together with other persons, incited other persons to organize, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification, namely separating the Hong Kong Special Administrative Region from the People’s Republic of China or altering by unlawful means the legal status of the Hong Kong Special Administrative Region.”

5.For the purpose of his guilty plea, the applicant agreed to the Amended Summary of Facts.[3] The admitted facts as agreed may be outlined as follows.

A1.  Prosecution case as admitted

A1.1  The Channel

6.The applicant committed incitement to secession via a Telegram channel (“the Channel”) first established on 14 December 2019 under the name “橙級裝備”.[4] Its name was changed on different occasions:

(1)  on 21 April 2020, to “得返一個來自香港的黑衣人”;[5]

(2)  on 30 April 2020, to “變返兩個半退休既冷氣勇武”;[6]

(3)  on 8 May 2020, to “兩個全力回歸既勇武派”[7]

(4)  on 22 May 2020, to “兩個勇武派的中共速龍小隊”;[8]

(5)  on 11 June 2020, to “暫時得返一個會覆機既勇武Admin”;[9]

(6)  on 3 August 2020, to “2個專叫港獨台獨反共反國安的年輕人”;[10]

(7)  on 28 August 2020, to “抗共港獨台 H.K.I.A.F.”.[11]

7.The applicant and another male surnamed Tsui were at all material times the administrators of the Channel. Initially, the identity of the administrators of the Channel were concealed but after a change of setting on 26 April 2020, viewers could see which administrator made which posts. Tsui and the applicant used the identity “Equipment for attack” admin and “Equipment for defense” admin respectively. In making posts, Tsui used “Yuri Orlov” with variations; and the applicant used “有為yy”[12]. Tsui and the applicant were also responsible for sale of “equipment for attack” and “equipment for defense” respectively.

8.As at 23 September 2020, a total of 1,040 persons joined and subscribed to the Channel. The link of the Channel was provided publicly under “Channel Info”, an introduction to the Channel on the Telegram platform. The applicant was identified as the commissioner for “defence-model”, whereas three other Telegram accounts were provided as commissioners for “attack-model”, “miscellaneous model” and “chatroom”.

A1.2  Secessionist posts and content on the Channel

9.Against the context of widespread violent and unlawful events in Hong Kong since June 2019, available records of the posts made in the Channel began on 31 January 2020 at 1740 hours. The police preserved all the available records of the posts since then up to 23 September 2020, one day before the arrest of the applicant. A total of 1495 posts were so preserved and are set out in Annex B to the Amended Summary of Facts with the English translation in Annex C. The posts made it clear as to which administrator made which post on what day and at what time. Out of the 1495 posts, at least about 338 posts were made by and/or related to the applicant. During the offence period, namely, between 30 June 2020 (starting at 2358 hours, that is, right after the NSL was made applicable to the HKSAR[13]) and 23 September 2020 (the day before the applicant was arrested), there were a total of 357 posts.

10.Before the NSL was applied to the HKSAR, there were a large number of posts in various forms such as texts, photo images, videos and other graphical depictions which the administrators posted or re-posted from other Telegram channels. The posts were generally of a nature designed to incite violence and counsel disobedience to the law by providing and offering for sale weapons and equipment such as pepper sprays, extendable batons, respirators and other body gear to protestors against the police; and providing protestors with information of police operations as well as strategy and tactics against police action. In particular, there were posts which expressly or implicitly suggesting acts to be taken to change the regime or status of the HKSAR unlawfully. For example, there were messages containing the slogans “Liberate Hong Kong, Revolution of our times”, “Hong Kong independence, the only way out” and “Fight against totalitarianism”.

11.The Channel also, for 27 times, organized polls and/or shared polls made by other Telegram channels or groups to seek opinion of viewers of the Channel on matters such as what gear or equipment would be sold or purchased and other issues relating to the protests in Hong Kong since June 2019.

12.After the NSL applies to the HKSAR, during the offence period, the Channel continued to carry posts and re-posts of a seditious nature and inciting hatred against the Central Authorities, the People’s Republic of China, the HKSAR and the police. There were many posts relating to Hong Kong independence, anti-communism, a violent faction that is anti-communist, Hong Kong being a country and appeals to participants to train themselves up to fight for “this country”, and appeals to others to equip themselves with weapons for close quarter combat. The posts for sale of weaponry and equipment also continued.

13.In particular, as set out at [20] of the Amended Summary of Facts, there were many posts to incite other persons by means of the posts in the Channel to organize, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification, namely separating the HKSAR from the PRC or altering by unlawful means the legal status of the HKSAR, in particular with contents containing “光復香港，時代革命”, advocating for the so-called independence of Hong Kong with the expression “香港獨立”, expressly or otherwise implicitly suggesting acts to be taken to unlawfully change the regime or status of the HKSAR. The applicant admitted that he personally made some of those posts.

14.Moreover, the Channel continued to organize, for 12 times, polls and/or share polls made by other Telegram channels or groups to seek opinion of viewers of the Channel with contents which were secessionist in nature. Responses ranging from 126 to 1,226 voters were received.

15.In sum, the applicant admitted the offence of incitement to secession as charged.

A2.  Mitigation

16.At the time of sentence, the applicant was aged 25 and had a clear record. He was single and lived with his mother. His father died when he was 15, which left a significant detrimental impact on him and his family. His mother took on the full responsibility of supporting him and his sister both emotionally and financially. He was a first-year student reading civil engineering at the Hong Kong Polytechnic University.

17.The applicant was diagnosed with Attention Deficit Hyperactivity Disorder (ADHD) in 2015 and had been receiving treatment since 2016. The defence stressed that his ADHD affected his DSE results but he did not give up. He motivated himself to study in his own time to repeat the examination and work at the same time to alleviate his mother’s financial burden. He was successful in his retake and was admitted to the HKPU in 2020.

18.According to the mitigation letters written by the applicant’s mother, a family friend, a volunteer who had regularly visited him since remand, his principal, vice principals and supervisor from school:

(1)  the applicant was a filial son and a kind-hearted young man who helped others and was determined to help himself despite his own difficulties;

(2)  he was a good student who actively participated in school life, voluntary work and extra-curricular activities as a squadron leader of the Air Cadets and vice president of the Student Association;

(3)  he was deeply affected by the social unrest in 2019 and concerned about the future of Hong Kong.

19.The defence emphasized that the applicant was remorseful. He himself wrote a letter accepting responsibility and explaining why he committed the offence. He pleaded guilty at the earliest opportunity and had been cooperating with the police. He now realized his wrongdoings and wanted only to better himself to contribute fruitfully to society once he had served his sentence.

20.In terms of seriousness of the offence, the defence submitted that it belonged to the minor category. It was stressed that the circulation of the Channel was likely to have been limited and not the same as appearing on television or publishing similar incitements in newspapers reaching large audiences; that those who logged into the Channel were others who already shared thoughts and sentiments similar to the administrators. They would not be those that would be influenced by the posts to commit acts of secession; and that the applicant lacked celebrity status, was not a well-known figure or public leader so that his messages would not have had much impact.

A3.  Reasons for sentence

21.The Judge delivered the Reasons for Sentence on 29 April 2022.[14] She first found that the present case was of serious nature for the purpose of NSL 21, warranting a sentence of not less than five years but not more than ten years as prescribed.[15] In so finding, she took into account the context in which the crime was committed. It was at a time when there was social unrest and heightened anti-government sentiment.[16] She emphasized the fact that social media had been used to perpetrate the offence.[17] The content of the posts was of a serious nature, leaving no doubt that the applicant condoned, promoted, advocated and incited others to commit secession or undermine national unification.[18] Amongst the rhetoric, the administrators of the Channel offered for sale weapons or items they described as either of an attacking or defending nature.[19] Finally, in a post on 23 July 2020, the Channel promoted the sale of bottles of hand sanitizer but also provided a means for participants to donate to the administrators for “fighting for Hong Kong independence by this channel”.[20]

22.The Judge adopted a starting point of five years and six months and reduced it by one-third to reflect the applicant’s timely plea.[21] However, before she became functus officio, the prosecution submitted that on a plain reading of NSL 21, the minimum of five years in the Upper Tier was meant to be mandatory so that while the Judge could still give the applicant a discount on account of his guilty plea, the ultimate sentence could not go below five years.[22] The prosecution cited R v Andrew James Jordan and others [2005] 2 Cr App R (S) 44 in support. Accepting that the prosecution appeared to be correct, the defence urged the Judge to re-consider the nature of the offence in light of the mandatory minimum sentence.[23] The Judge agreed with the prosecution’s reading of NSL 21 so that she must impose a minimum of five years’ imprisonment. She maintained her finding that the nature of the offence was serious and having regard to all the circumstances and mitigation, sentenced the applicant to five years’ imprisonment.[24]

B.  Grounds of Appeal

23.In the Amended Perfected Grounds of Appeal, a total of five grounds of appeal are raised.[25] The first two grounds attack the Judge’s categorization of the offence as serious:

(1)  The Judge erred in categorizing the circumstances of the offence as serious under NSL 21 by over-emphasizing or attaching too much weight to the factors adverse to the applicant and disregarding or not giving proper and sufficient weight to those favourable to him. (Ground 1)

(2)  Alternatively, even if the offence was serious, the Judge erred in adopting a manifestly excessive starting point because of her mistaken treatments of the factors as aforesaid. (Ground 2)

They call for a closer examination of the facts.

24.The next two grounds complain of the Judge’s failure to give the customary one-third discount in full:

(1)  The Judge erred in her interpretation of NSL 21 regarding the permissible final sentence by not taking into account NSL 33(1) whereby fulfilment of one of the prescribed circumstances may “reduce” even a minimum sentence; and by not taking into account or giving sufficient weight to the relevant mitigating factors including the guilty plea. (Ground 3)

(2)  Further, the Judge failed to give sufficient reduction with reference to NSL 33(1)(2) as the circumstances concerning the applicant came very close, if not identical to the scenario provided thereunder; and the relevant mitigating factors including the guilty plea. (Ground 4)

They entail a construction exercise to ascertain the legislative intention of the Upper Tier and NSL 33(1) in their application to sentencing of a serious NSL 21 offence.

25.The last ground wraps up the applicant’s case by asserting that because of Grounds 1 to 4, individually or cumulatively, the sentence is wrong in principle or manifestly excessive. It does not add much in terms of substance or analysis and stands or falls with the other Grounds.

C.  Grounds 1 and 2

26.In light of how Mr Edwin Choy, SC,[26] for the applicant, argued Grounds 1 and 2, it is convenient to deal with them together.

C1.  The general approach to categorization

27.In HKSAR v Ma Chun Man [2022] HKCA 1151, which was handed down after the time of sentence in the present case, this Court laid down the general approach to the categorization of an offence of incitement to secession under NSL 21 thus:

(1)  Since the legislative intent of the NSL is to seek convergence, compatibility and complementarity with local laws, in the absence of any NSL provision on how to classify cases of incitement to secession, the local sentencing principles apply. See [67].

(2)  According to local sentencing principles, the sentencing of an offence is informed by its gravamen. As a pre-emptive offence, the gravamen of the offence of incitement under NSL 21 is (a) to prevent inciting (which includes enticing or encouraging) another person to commit the crimes of secession; and (b) to allow the law to intervene and prevent at the earliest stage the commission of the crimes of secession by those incited. Its purpose is to fully safeguard the immense public interest in national security, territorial integrity, the constitutional foundation and the legal status of the HKSAR, and to ensure that any crime of secession will be thwarted and punished timely and effectively. See [73].

(3)  Whether a case of incitement to secession is serious or minor depends on all the circumstances. Drawing on the common law offence of incitement, which is similar in nature, the court will focus primarily on the offender’s conduct, as well as the consequences, risks and other possible effects that his conduct might entail. The court will take into account, non-exhaustively: (a) the context in which the offence was committed; (b) the modus operandi; (c) the frequency, duration and persistency of the incitement; (d) the scale of the incitement; (e) whether there was premeditation; (f) whether the offence involved violence or threat of violence; (g) whether the offender acted in concert with others; (h) the persons or groups being targeted and the potential influence on them; (i) whether anyone had been incited into committing secession or any other offence; or how imminent or serious such threat or risk was; (j) the actual or potential influence that the offender may generally have on society or a particular sector thereof. See [73] – [75].

(4)  Finally, the court has to carefully consider the facts, identify all the relevant factors, and give due weight to them individually and collectively in the overall circumstances in categorizing the case as serious or minor. See [76].

C2.  Categorization of the present case

28.Applying the above approach to the present case, we first consider the context of the offence.

29.The applicant committed the offence between 30 June and 24 September 2020. As noted in Ma Chun Man, at [78] and accepted by the applicant, although the scale and severity of unlawful and violent assemblies at that time was less serious than before the NSL was applied to Hong Kong, Hong Kong was still facing considerable threats and risks to national security and public disorder. Viewed against that context, the threats and risks to national security by the applicant’s incitement was more than latent as submitted by Mr Choy. They were real and must be given due weight in the overall assessment of the seriousness of his conduct.

30.Mr Choy compared the facts of the present case with those in Divin and McGinlay v HM Advocate [2013] JC 259 and Attorney General v Tse Chung [1967] HKLR 452 and submitted that the timing of the commission of the offence by the applicant was far from being the worst of its kind.

31.In Divin, the appellants pleaded guilty to an offence of using social networking sites to incite others to riot and were sentenced to 3 years and 3 months’ and 3 years’ imprisonment respectively. The context of the offence was that of extensive and very recent rioting and looting in a number of cities and towns in England which had been widely reported by the media in Scotland. Although such criminal conduct had not been spread to Scotland, concerns existed that it might. Against that background, the High Court of Judiciary at [20] held that the appellants’ culpability was high and despite their young age, a sentence of detention was the only appropriate disposal for each of them.

32.In Tse Chung, the appellant was convicted of unlawful assembly during the 1967 riots in Hong Kong and was sentenced to 12 months’ imprisonment. At the time of the offence, he stood at the forefront with a crowd of people in violent and noisy confrontation with the police. The appellant appealed against sentence on the grounds that the magistrate must have imposed sentence for reasons other than those he actually expressed and that he should not have taken judicial notice of the then disturbed state of Hong Kong. That was roundly rejected by the court at p 458.

33.In our view, the seriousness of a particular offence has to be gauged by its actual circumstances, which by nature, must vary from case to case. With so many variables involved, there are limits to the extent to which comparisons with the detail of other cases can assist the sentencing court in determining the seriousness of the offence and the appropriate sentence before it: see Divin, at [28]. If the facts or contexts are comparable, then those cases may provide some assistance. If not, the utility of such comparison is minimal. Here, we do not find the comparison with Divin or Tse Chung helpful because the facts and contexts were so different. Ma Chun Man is more useful because it also involves an NSL 21 offence and the time of the offence, namely, between August and November 2020, is comparable. Further, it does not assist the assessment to ask if the context of the present offence is or is not the worst of its kind. The more relevant question is whether the context, together with the other features, in the overall assessment of the circumstances justifies the categorization of the offence as a serious one.

34.Next, as is now well-established, the use of social media for committing incitement is an aggravating feature: 律政司司長訴庚家駒[2020] HKCA 1019, at [28]. The aggravation lies in the extreme effectiveness of social media in providing platforms or means to individuals with the ease and ability to communicate or disseminate messages or content to a vast audience instantly without physical contact or geographical constraints, thereby amplifying the effects of the incitement and increases exponentially the threats and risks it poses to national security. As the English Court of Appeal relevantly explained in R v Blackshaw [2012] 1 WLR 1126, in connection with the common law offence of incitement to serious public disorder,[27] at [73]:

“We are unimpressed with the suggestion that in each case the defendant did no more than make the appropriate entry in his Facebook. Neither went from door to door looking for friends or like-minded people to join up with him in the riot. All that is true. But modern technology has done away with the need for such direct personal communication. It can all be done through Facebook or other social media. In other words, the abuse of modern technology for criminal purposes extends to and includes incitement of very many people by a single step. Indeed it is a sinister feature of these cases that modern technology almost certainly assisted rioters in other places to organize the rapid movement and congregation of disorderly groups in new and unpoliced areas.”[28]

35.As is agreed, Telegram is a widely used social media platform allowing users to set up private or public channels to publish posts. Public channels are operated by its owners, administrators or authorized persons. Other users can join and subscribe to public channels to view and receive posts as part of the messaging function of Telegram. Users can also view the posts in a public channel without joining it by searching for and accessing the channels with name, link and/or ID of the channel. The Channel used by the applicant was a public channel on Telegram and all Telegram users could access the posts there as aforesaid. And there were 1,040 users who joined and subscribed the Channel, which is not negligible. Using the Channel to commit the offence is clearly an aggravation.

36.Mr Choy took no issue at the judicial abhorrence against the commission of incitement by using social media. However, he argued that there remains a wide spectrum of culpability. Adopting a broad-brush approach would not be able to differentiate different degrees of culpability. The court should consider how the social media was used, to what extent it was used and its actual effectiveness. Thus in Ma Chun Man, the applicant effectively used different social media together with traditional means to achieve the maximum secession effects, including Facebook, Telegram, videos available online, incitements at big shopping malls as well as outside Government Headquarters and police station, interactive journalistic interviews and pre-made propaganda materials for distribution. In stark contrast, the applicant here only administered with another person a single Telegram channel containing posts and photos, the contents of which, he accepted, were objectively far from harmless.

37.By comparison, the modus operandi adopted in Ma Chun Man might be more serious. But the use of the Channel in the manner as it was in the present case remains an aggravation. That must weigh heavily in the court’s assessment of the seriousness of the offence.

38.Moreover, there are other aggravating features:

(1)  The applicant defiantly denounced the authority of the NSL on the Channel. For example, on 4 July 2020, he published a post in which he said that he would regard the NSL as “a piece of waste paper”.[29]

(2)  Secessionist posts and videos were published right after the NSL was applied to Hong Kong on 30 June 2020[30] and on 1 July 2020, the establishment day of the HKSAR,[31] both of which were then sensitive dates with clear risks of provoking secessionist and other unlawful acts: see Ma Chun Man, at [83(1)]. Mr Choy submitted that those were the only sensitive dates over a time span of nearly three months, in stark contrast to the much greater number of sensitive dates identified in Ma Chun Man. Strictly in terms of figures, Mr Choy is right. But the risks involved in the present case were still high.

(3)  There were a total of 357 posts published on the Channel with 8 directly by the applicant himself. Mr Choy submitted that the Judge had failed to consider the limited number of posts (8) made by or related to the applicant. However, as submitted by Mr Anthony Chau, Deputy Director of Public Prosecutions,[32] the applicant pleaded guilty and admitted to have committed the offence with others, that is, jointly as administrators of the Channel. All secessionist and other unlawful content in the Channel were attributable to him, even if they were published by others. The 8 posts published by him in fact only aggravated his criminality by way of direct conduct.

(4)  The Channel, for 12 times, organized polls and/or shared polls made by other Telegram channels or groups to seek opinion of viewers of the Channel with contents which were secessionist in nature and received responses ranging from 126 to 1,226 voters. Arousing public attention and discussion in the guise of polls by making use of secession materials with a view to advocating secession is clearly an aggravation.

(5)  The applicant acted in concert with others, including Tsui. According to how the Channel was administered, there was plainly a degree of division of labour between them, although as submitted by Mr Choy it did not appear to involve a high degree of sophistication or scale.

(6)  As noted by the Judge, during the offence period, the Channel carried posts for sale of weaponry and gear, advocating violence and targeting the sovereignty over the HKSAR by China. Advocating the use of violence is undoubtedly a very serious aggravating factor: Ma Chun Man, at [75(6)].

(7)  As further pointed out by the Judge, the Channel was used to appeal to participants for donations to the administrators, including the applicant, “for fighting for Hong Kong independence”. Seeking to raise funds for the secessionist cause is clearly an aggravation.

(8)  The Channel targeted the general public and its 1,000 plus subscribers. Further, by advertising for sale of weapons and gear, the Channel clearly aimed at people including protestors who were inclined to resorting to violence, thereby posing a greater risk to national security and public disorder.

39.The overall circumstances of the offence well justify the Judge’s categorization. Mr Choy’s complaint that she erred in attaching too much weight to those factors adverse to the applicant cannot stand.

40.Mr Choy further submitted that although it might not be a mitigating factor, the fact that no persons were shown to have been incited adds nothing to aggravate the offence. As the applicant was not a social celebrity, his actual or potential influence on others would be much lesser than otherwise. Even taken at their highest, those factors favourable to the applicant do not in our view detract from the seriousness of his offence. Mr Choy’s complaint that the Judge erred in not giving sufficient weight to them is not substantiated either.

41.Having carefully evaluated the circumstances of the present offence, we find that they were of a serious nature within the meaning of NSL 21. The Judge was correct in her categorization, albeit her reasoning was not as full as this judgment, which is understandable because at the time she did not have the guidance from Ma Chun Man. Ground 1 accordingly fails.

C3.  Starting point

42.After stating that she stood corrected and agreed that NSL 21 did impose a mandatory minimum of five years and maintaining her categorization of the offence as serious, the Judge did not say anything further about starting points. Understood in context, and agreed by the parties, it means that she stood by the five years and six months starting point. In so doing, she must have found that the applicant’s culpability falls near the lower end of the category. We agree with her finding. The starting point adopted by the Judge is within the reasonable bounds that a sentencing court may impose for a serious offence sitting in that end. There is no basis for this Court to disturb it as being manifestly excessive. Ground 2 therefore also fails.

D.  Core issues arising from Grounds 3 and 4

43.We now come to Grounds 3 and 4. They give rise to two core issues.

44.The first core issue is: whether it is the legislative intention of the Upper Tier in prescribing the range of penalty for serious NSL 21 offences to lay down a range of starting points between the maximum of ten years and the minimum of five years, as the applicant contended? Or whether it is to set five years as a mandatory minimum, as the respondent contended? We will refer to this as the 1^st Core Issue.

45.If the Upper Tier is intended to be a range of starting points, subject to the next core issue on the effect of NSL 33(1), the sentencing court should be able to adjust the penalty to below five years after giving appropriate discount to applicable mitigating circumstances including a guilty plea. If the Upper Tier mandates five years as the minimum, the court must faithfully apply it. Subject to the next core issue, whatever discount the court may give for the mitigating circumstances including a guilty plea, it cannot take the ultimate sentence below it.

46.The second core issue is: whether, as the respondent contended but disputed by the applicant, the legislative intention is that the three conditions specified in NSL 33(1) are exhaustive so that in their absence, the court cannot adjust the penalty of a serious NSL 21 offence lower than the minimum of five years in the Upper Tier on account of other mitigating circumstances including a guilty plea? We will call this the 2^nd Core Issue.

47.Once the Core Issues are resolved, Grounds 3 and 4 can be disposed of shortly.

E.  Construction of NSL 21 and NSL 33(1)

48.NSL 21 and NSL 33(1) and their English translations have already been set out at [1] and [2] above. In construing them, we adopt the contextual and purposive approach as the Court of Final Appeal did in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33; and HKSAR v Ng Hau Yi Sidney (2021) 24 HKCFAR 417: see also Tong Ying Kit v Secretary for Justice [2021] 3 HKLRD 350 at [31] – [34].

E1.  Context of NSL 21 and NSL 33(1)

49.First and foremost, NSL 21 and NSL 33(1) must be examined in the light of the context and purpose of the NSL as a whole, taking into account the constitutional basis upon which the NSL is applied in the HKSAR: Lai Chee Ying, at [8]. Given the special status of the NSL as a national law applied under article 18 of the Basic Law in the HKSAR, and the express reference to the Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region (28 May 2020) in NSL 1, regard may properly be had to the legislative materials of the NSL to ascertain the context and purpose of the NSL as a whole: Lai Chee Ying, at [11].

50.In Lai Chee Ying, the Court of Final Appeal in Part B summarised the legislative history of the NSL. In so doing, the Court canvassed the legislative materials of the NSL in some detail against the background of prominent national security risks in the HKSAR, as seen in the serious, prolonged disturbances to public order, the alarming breakdown of law and order and escalating violence, the wholesale challenges to the governments of the PRC and the HKSAR, and the rampant acts and activities threatening national security including those advocating “Hong Kong independence”. As observed by the Court of Final Appeal:

(1)  Against that background, the Central Authorities found the absence of national security legislation pursuant to article 23 of the Basic Law[33] since 1 July 1997 unacceptable.

(2)  The Central Authorities therefore decided to enact the NSL at the national level to “establish and improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security, and to change its long-term ‘defenceless’ condition in the field of national security”. The need to improve the HKSAR’s system and to address the institutional deficiencies in relation to safeguarding national security was further stressed as one of the working principles for drafting the NSL.

(3)  The basic principles underlying the NSL were stated to be:

(a)  First, “resolutely safeguarding national security”;

(b)  Secondly, “upholding and enhancing the ‘One Country, Two Systems regime’”;

(c)  Thirdly, adhering to “administering Hong Kong in accordance with the law” and resolutely upholding “the constitutional order in the HKSAR as established by the Constitution and the Hong Kong Basic Law”;

(d)  Fourthly, resolutely opposing external interference; and

(e)  Fifthly, “fully safeguarding the legitimate rights and interests of Hong Kong residents”.

51.These basic principles are contained and reflected in NSL 1 which expressly stipulates the purpose of the NSL in these terms:

“This Law is enacted, in accordance with the Constitution of the People’s Republic of China, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, and the Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region, for the purpose of:

- ensuring the resolute, full and faithful implementation of the policy of One Country, Two Systems under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;

- safeguarding national security;

- preventing, suppressing and imposing punishment for the offences of secession, subversion, organisation and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the Hong Kong Special Administrative Region;

- maintaining prosperity and stability of the Hong Kong Special Administrative Region; and

- protecting the lawful rights and interests of the residents of the Hong Kong Special Administrative Region.”

The immediate point to note for present purpose is that as an integral component of safeguarding national security, preventing, suppressing and imposing punishment for the NSL offences is distinctly stated as a primary purpose of the NSL (“Primary Purpose”), highlighting its immense importance in the overall scheme of the NSL.

52.Moreover, very relevantly, the NSL lays particular emphasis on the Primary Purpose, requiring strict and full application of the NSL and local laws to prevent, suppress and impose punishment for offences endangering national security when referring to criminal proceedings and penal sanctions. Thus, NSL 3(3) requires the executive authorities, legislature and judiciary of the HKSAR, in discharging their duty to safeguard national security to:[34]

“effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.”

Specifically, NSL 8 directs the law enforcement and judicial authorities of the HKSAR, in order to safeguard national security effectively, to fully enforce this Law and the laws in force of the Region:[35]

“concerning the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security.”

Further, NSL 42(1) requires the law enforcement and judicial authorities, in applying local laws concerning matters such as detention and time limit, to handle cases concerning offence endangering national security in a fair and timely manner so as to:[36]

“effectively prevent, suppress and impose punishment for such offence.”

53.It must be emphasised that the imperative in NSL 3(3), NSL 8 and NSL 42(1) on strict and full application of laws to further the Primary Purpose (“the Imperative”) covers not only the NSL but also local laws. As will be elaborated, the Imperative materially impacts on how local sentencing laws are to apply in the framework of NSL 21 and NSL 33(1).

54.While the NSL is tailor-made to cater for the national security risks in the HKSAR, it is by no means intended to be the one and only code of laws to safeguard national security in the Region. For NSL 7 directs the HKSAR to enact BL 23 legislation as soon as possible and to refine relevant laws to protect national security. That article recognizes that the NSL provides an incomplete framework of laws designed to protect national security: Ng Hau Yi Sidney, at [18]. Moreover, after considering NSL 3, NSL 7, NSL 8 and NSL 42, the Court of Final Appeal said at [24]:

“Viewed purposively, the intent of the NSL is plainly for national security to be safeguarded by the complementary application of the laws which it creates together with the existing laws of the HKSAR, such as those contained in Part II of the Crimes Ordinance[37].”

55.Arising from the above context of the NSL as a whole are four instructive propositions.

56.First, in the wake of the grave and indeed unprecedented national security risks in the HKSAR and in the absence of BL 23 legislation, the NSL was enacted to partially fill the legal lacuna for safeguarding national security in the Region. The remaining gap after enactment of the NSL is to be filled by (1) the application of relevant existing laws; (2) the refinement of such laws; and (3) the enactment of BL 23 legislation. Pending (2) and (3), the laws available to protect national security are the NSL and relevant existing laws, such as those in Part II of the Crimes Ordinance. Local sentencing laws must therefore operate in tandem with the NSL to achieve the aim of safeguarding national security, giving priority to NSL provisions in case of inconsistency:[38] Ma Chun Man, at [66].

57.Second, applying the Imperative to the penalty regimes in the NSL, priority should be given to the penological considerations of deterrence, retribution, denunciation and incapacitation, that is, putting out of the power of the offender to commit further offences (“the Penological Considerations”). It follows that the construction of NSL 21 must give full effect to the Penological Considerations.

58.Third, the court may take into account applicable mitigating circumstances to balance against the rigour of the Penological Considerations in arriving at a proportionate sentence. In the context of the NSL, because of the Imperative, not all mitigating circumstances are applicable. Only those which do not compromise the Primary Purpose are permissible. This informs the construction of NSL 33(1).

59.Fourth, the Imperative also governs the application of local sentencing laws to the sentencing of the NSL offences. To achieve convergence, compatibility and complementarity with NSL 21, local sentencing laws on mitigation can apply only if they do not prejudice the effect of the Penological Considerations. To achieve the same result with NSL 33(1), local sentencing laws on mitigation can only apply if they do not compromise the Primary Purpose.

E2.  Construing NSL 21 and NSL 33(1)

60.When construed with the above considerations in mind, the legislative intention and effect of NSL 21 is clear.

61.For minor offences, the Lower Tier stipulates three penalty options: (1) fixed-term imprisonment; (2) short-term detention; and (3) restriction. For fixed-term imprisonment, the maximum is five years. Insofar as imprisonment is concerned, the Lower Tier sets a range of starting points with five years as the maximum, leaving it to the court to determine what term is appropriate in the particular circumstances of the case. In so doing, the Lower Tier operates in very much the same way as most local statutory penalty regimes do.

62.For serious offences, the Upper Tier stipulates only one penalty option, that is, fixed-term imprisonment. It also sets a maximum of ten years and a minimum of five years. By specifying such a scope of penalty, unwarranted divergence in the assessment of punishment by different courts is avoided. This reflects broadly the notion of fairness in the context of criminal justice that generally there should be a substantial degree of consistency in the punishment of offences with comparable severity. Further, the choice of imprisonment as the only penalty option and the range of penalty in the Upper Tier reflect the drafters’ judgment with respect to the gravity of serious NSL 21 offences and how to give full effect to the Penological Considerations to further the Primary Purpose in sentencing serious NSL 21 offences.

63.Thus viewed purposively, the minimum of five years in the Upper Tier is mandatory. It follows that subject to the effect of NSL 33(1), whatever discount the court may give on account of mitigation, the ultimate sentence imposed cannot go below the minimum of five years.

64.Turning to NSL 33(1), its legislative intention and effect is equally clear.

65.To recap, the three disposals in NSL 33(1) are 從輕處罰, 減輕處罰and免除處罰.

66.The English translations for 從輕處罰 and 減輕處罰, that is, “a lighter penalty may be imposed” and “the penalty may be reduced”, appear to be synonymous. However, in Chinese, which is the official version, their natural and ordinary meanings are quite different.

67.According to 現代汉語規范詞典,第三版 (Xiandai Hanyu Guifan Cidian, the 3^rd Edition), at p 222, 從輕 means “在法律或條例規定的範圍內給予較輕的（刑罰或處罰）”, which may be translated as “give a lighter punishment or penalty within the range stipulated by the law or regulations”. And at p 641, 減輕means “數量減少；程度降低”, which may be translated as “quantum reduced; level lowered”. When applied to sentencing, 減輕處罰means reducing or lowering the penalty below the range of penalties stipulated by the law. That is distinct from 從輕處罰and is a more lenient option of adjusting the penalty. Both parties agree that 從輕處罰 and 減輕處罰 bear the above meanings.

68.The three disposals accordingly follow their sliding degree of leniency in their order of appearance in NSL 33(1):

(1)  從輕處罰, imposing a lighter penalty, that is, imposing a lighter penalty within the applicable tier as prescribed by the relevant NSL provisions;

(2)  減輕處罰, reducing the penalty, that is, reducing the penalty from the applicable tier to a lower tier, which is more lenient; and

(3)  免除處罰, that is, exempting the penalty, which is most lenient.

As to which disposal the court may adopt, it must depend on the actual circumstances of the case before it. Since 免除處罰 does not arise in the present case, we will just focus on the other two.[39]

69.Whether 從輕處罰 (to impose a lighter penalty) or 減輕處罰 (to reduce a penalty) depends necessarily on the weight to be attached to the available mitigating circumstances. Put differently, it is the weight of the mitigation that determines if the court should or 減輕處罰. Although 從輕處罰 and 減輕處罰define the permissible extent of discount, they essentially involve the same qualitative assessment in which the court evaluates and weighs all the available mitigating factors. The weight so accorded by the court must vary from case to case and there is always a spectrum. In sentencing an NSL 21 offence, if the court decides to從輕處罰, it may impose a lighter penalty within either of the Upper Tier or Lower Tier. For serious offences, whatever discount the court may give, the ultimate sentence cannot go below the mandatory minimum of five years in the Upper Tier. In contrast, if the court decides to減輕處罰, it may reduce the penalty from the Upper Tier to the Lower Tier.

70.In enabling the court to 從輕處罰 (imposing a lighter penalty) or 減輕處罰 (reducing a penalty), not only does NSL 33(1) not compromise the Primary Purpose but it is in fact conducive to achieving it, because each of the specified conditions is broadly consistent with such purpose:

(1)  NSL 33(1)(1) encourages an offender to desist from completing the NSL offence and to take active advance steps to prevent the offence from taking its toll on the victims and society. They are largely in line with the objective of prevention and suppression of NSL offences.

(2)  NSL 33(1)(2) encourages an offender to so conduct himself to enable the law enforcement agencies to devote more time and resources on investigating and prosecuting other NSL offences. This is largely consistent with the objective of preventing and suppressing NSL offences.

(3)  NSL 33(1)(3) encourages the offender to inform on other criminals. It is a powerful weapon in the hands of the law enforcement in the fight against NSL offences, serving the aim of prevention, detection and prosecution of such offences. See Z v HKSAR (2007) 10 HKCFAR 183, per Li CJ at [10].

71.Moreover, among all forms of mitigation, the specification of the three conditions, without more, is intentional. It reflects the drafters’ judgment that they are the only relevant mitigating factors in the context of national security which may allow the court to not only 從輕處罰 (imposing a lighter penalty) but also減輕處罰 (reducing a penalty), as the case may be, without prejudicing the Penological Considerations or compromising the Primary Purpose. The legislative intention is plainly that, as specified conditions in the NSL, they are exhaustive in that sense.

72.However, it is also the legislative intention that local sentencing laws on mitigation are to operate in tandem with the NSL, provided that they do not prejudice the Penological Considerations or compromise the Primary Purpose. So, as rightly accepted by Mr Chau, other mitigating factors not specified in NSL 33(1) but recognised under the common law, such as guilty pleas, can operate in full for the court to consider 從輕處罰, that is, imposing a lighter sentence within the respective range of the Lower and Upper Tier. It is because whatever the discount those mitigating factors may afford, the ultimate sentence stays within the range of either Tier, which still accords with the drafters’ judgment with respect to the gravity of and the Penological Considerations for NSL 21 offences. As such, they do not compromise the Primary Purpose.

73.Those other mitigating factors, however, cannot apply to 減輕處罰, that is, to reduce the sentence below the minimum of five years in the Upper Tier. It is because if they were to apply to discount the sentence below five years, it would contradict the drafters’ judgment with respect to the gravity of serious NSL 21 offences and prejudice the Penological Considerations for such offences, thereby compromising the Primary Purpose in that regard. As such, they are not compatible with either NSL 21 or NSL 33(1).

74.In contending that the Upper Tier only prescribes a range of starting points, Mr Choy referred to some other legislations which adopt the language similar to “shall be sentenced” used in the English translation of the Upper Tier, such as sections 36(2) and (2A) of the Road Traffic Ordinance,[40] and section 51A of the English Firearms Act 1968. He argued that although mandatory language has been used in those legislations, the legislative intention is to set a range of starting points as opposed to a mandatory minimum.

75.Sections 36(2) and (2A) of the Road Traffic Ordinance provide for disqualification periods for conviction of the offence of dangerous driving causing death. Section 36(2) stipulates:

“If a court or magistrate convicts a person of an offence under subsection (1), the court or magistrate shall order that the person be disqualified in accordance with subsection (2A) or (2B) unless the court or magistrate for special reasons orders that the person be disqualified for a shorter period or that the person not be disqualified.”

Under subsection (2A), the disqualification is, in the case of a first conviction, for a period of not less than 5 years and in the case of a second or subsequent conviction, for a period of not less than 10 years.

76.In HKSAR v Wong Mun Ming [2016] 1 HKLRD 1057, on which Mr Choy relied, the Court of Appeal at [30]-[32] held that the effect of those provisions is to lay down a starting point and it is one from which the judge may depart upon being satisfied of the existence of “special reasons” as defined in the Ordinance. Although it was not so expressed, it is clear that the Court arrived at that conclusion as a matter of construction.

77.In our view, the context and purpose of the Road Traffic Ordinance is entirely different from the NSL. The construction for sections 36(2) and (2A) is irrelevant to the construction of NSL 21.

78.As will be elaborated at [86] below, section 51A of the Firearms Act 1968 involves an entirely different legislative scheme. Its construction is irrelevant, which means that Mr Choy’s reliance on it is also misplaced.

79.Next, Mr Choy argued that NSL 33(1) fortifies his construction of the Upper Tier. Had the five years been a mandatory minimum, it would be unnecessary to provide in NSL 33(1) that the sentence could be reduced in the specifying circumstances. However, Mr Choy’s argument missed the fundamental point that NSL 33(1) exists, among others, for the very purpose of enabling the rigour of the mandatory minimum to be mitigated without compromising the Penological Considerations in furtherance of the Primary Purpose in sentencing serious NSL 21 offences.

80.Mr Choy then argued that NSL 21 operates very much like guideline judgments set by the Court of Appeal in offences of trafficking in dangerous drugs.

81.Most local statutory regimes set the maximum penalty without specifying a minimum, leaving the court to mete out appropriate sentences in different cases. In exercise of its sentencing jurisdiction, the Court of Appeal has handed down guideline judgments, stating tiered-ranges of sentences which reflect gradations in severity to assist the lower courts in sentencing serious offences, such as child pornography;[41] theft or fraud involving a breach of trust;[42] and trafficking in dangerous drugs.[43] Consistency in punishment and treatment is the primary consideration of issuing guideline judgments, which is a fundamental aspect of any rational and fair system of criminal justice: see HKSAR v Godson Ugochukwu Okoro [2019] 2 HKLRD 451, at [81]-[82]. The ranges of sentences effectively set the ranges of starting points for the court to adopt in individual cases. Depending on the circumstances, the ultimate sentence may stay within the applicable range or fall below the minimum of the range. Thus understood, guideline judgments are premised on and operate within sentencing regimes which set the maximum without a minimum. They do not inform the construction of the Upper Tier, a wholly different penalty regime.

82.In sum, Mr Choy’s submissions failed to take account of the context and purpose of the NSL as a whole sufficiently. His construction of the Upper Tier is unsustainable.

83.Turning to NSL 33(1), Mr Choy argued that the drafters of the NSL were fully aware of local sentencing laws when drafting it. It cannot be accidental that the drafters do not univocally state the three specified conditions to be exhaustive. The plain meaning of the language makes it clear that they are not meant to be exhaustive in allowing the court to 減輕處罰, that is, to reduce the penalty of a serious NSL 21 offence. With respect, Mr Choy also failed to construe NSL 33(1) in the context of the NSL as a whole. He also failed to sufficiently recognize that in their application to sentencing such offences, local sentencing laws on mitigation must operate in tandem with NSL 21 and NSL 33(1) in the manner as explained above. His submissions likewise cannot stand.

84.For completeness, we only need to deal with two points taken by Mr Chau in support of his arguments on the construction of NSL 21 and NSL 33(1).

85.First, as he did before the Judge, Mr Chau relied on Jordan.

86.In Jordan, the appellants pleaded guilty to offences of possession of firearms and prohibited firearms under the Firearms Act 1968. Section 51A of the Act provides that:

“The court shall impose an appropriate custodial sentence (or order for detention) for a term of at least the required minimum (with or without fine) unless the court is of the opinion that there are exceptional circumstances relating to the offence or to the offender which justifies not doing so.”

One of the issues on appeal was whether the court could give discount on guilty pleas which would lower the sentence beyond the mandatory minimum despite section 51A. The English Court of Appeal approached it by ascertaining the legislative intent of the Parliament in enacting section 51A. Noting that the section was plain and unambiguous on its face; that the Parliament was plainly aware of the statutory provisions on how guilty pleas should be regarded in sentencing; and that the absence from section 51A of any reference to those provisions was plainly deliberate, the Court rejected the contention that the Parliament could not have intended to prevent the reduction of a sentence following a guilty plea. They further held that the rigour of section 51A was mitigated by the possibility of exceptional circumstances being found, but they did not regard a guilty plea as an exceptional circumstance. Thus analysed, Jordan, which involves a wholly different legislative scheme, does not assist the construction exercise at hand.

87.Second, Mr Chau sought to rely on the substantive Mainland sentencing law, making reference to a book entitled刑法条文理解适用与司法实务全书,根据刑法修正案1~10编定,第一卷,第四章,第一節刑罚的具体运用.[44] He submitted that since there is a need for convergence between the NSL and local laws, the Mainland sentencing law on the meanings of terms used in the NSL will help the construction exercise.

88.As to that, there was some very brief discussion between the bench and Mr Chau. Unfortunately, Mr Chau failed to properly articulate the basis for his reliance on the Mainland sentencing law, which required clarification. In the process, certain remarks were made by the Court which we now recast to better express our meaning, as follows. Given the special status of the NSL as a national law applied to the HKSAR, regard may properly be had to the relevant Mainland law in aid of its construction. For as pointed out by the Court of Final Appeal in Lai Chee Ying, at [18], according to the Explanation on the “Draft Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region” addressed to the 19^th Session of the 13^th Standing Committee of the National People’s Congress by the Responsible Official of the Legislative Affairs Commission under the Standing Committee of the National People’s Congress (18 June 2020), one of the working principles for drafting the NSL was:

“… accommodating the differences between Mainland China and the HKSAR, and striving to address the convergence, compatibility and complementarity between this Law, and the relevant national laws and local laws of the HKSAR.” (Emphasis supplied)

Accordingly, the relevant Mainland law may in principle inform the construction of the NSL or a particular NSL provision. As to which particular Mainland law is relevant for the construction exercise, how and to what extent it is relevant, and how to make reference to it must depend on the actual circumstances of the case before the court.

89.As mentioned at the hearing, for the purpose of the present case, the need to refer to or consult the substantial Mainland sentencing law for the construction of NSL 21 or NSL 33(1) does not arise. So we will just leave the materials relied on by Mr Chau, the status of which has not been properly established by him, as they are.

E3.  Answers to the Core Issues

90.For these reasons, the answer to the 1^st Core Issue is that on a proper construction, the legislative intention of NSL 21 in prescribing the range of penalty for serious offences in the Upper Tier is to lay down a mandatory minimum of five years.

91.The answer to the 2^nd Core Issue is that NSL 33(1) is, on a proper construction, exhaustive in enabling the court to 減輕處罰, that is to reduce the sentence for a serious NSL 21 offence below the mandatory minimum of five years in the Upper Tier as appropriate. Other mitigating circumstances recognised under local laws including guilty pleas are not applicable for such purpose.

F.  Grounds 3 to 5

92.In light of the answers on the Core Issues, both Grounds 3 and 4 fail to the extent as discussed above. As to the remainder, none of the complaints is established either.

93.In respect of Ground 3, Mr Choy submitted that on a proper construction of NSL 21 and NSL 33(1), the minimum term can and should be “reduced” such that a starting point can be adjusted downward for individual justice if one of the prescribed circumstances is satisfied. However, the proper approach to sentencing under NSL 21 is for the court to firstly categorize the offence as either serious or minor; and then to determine the penalty within the applicable tier. The adjusting of an otherwise appropriate sentence, if warranted, would take place at the second step. The practical effect of Mr Choy’s submission is to ask the court to go back to the first step and re-categorize a serious case as a minor one. That is wrong in principle.

94.In respect of Ground 4, Mr Choy submitted that the circumstances of the applicant came very close, if not identical to the scenario specified in NSL 33(1)(2) although he did not voluntarily surrender himself. Thus he should be entitled to avail himself of NSL 33(1)(2). However, the language of NSL 33(1)(2) is plain and unambiguous. Voluntary surrender takes place before any appearance of the offender before the court. It would be too far-fetching to suggest that it covers the making of a plea by him at trial.

95.As said, Ground 5 adds nothing to the applicant’s case. It falls together with Grounds 1 to 4.

G.  Dispositions

96.For the above reasons, the Judge was correct in her categorization of the offence committed by the applicant as serious. Although she erred in relying on Jordan, her conclusion as to the construction of NSL 21 was correct. Further, on a proper construction of NSL 33(1), the applicant’s timely guilty plea could not apply to adjust the ultimate sentence below the minimum of five years in the Upper Tier.

97.In consequence, we uphold the sentence of five years’ imprisonment that the Judge imposed on the applicant and dismiss his application for leave to appeal against sentence.

Mr Edwin Choy SC and Mr Kevin Tang, instructed by Wan Yeung Hau & Co., assigned by the Director of Legal Aid, and Mr Jonathan Lin, instructed by Wan Yeung Hau & Co., for the applicant

Mr Anthony Chau, DDPP and Mr Ivan Cheung, ADPP (Ag), of the Department of Justice, for the respondent