Ma Junwen, nicknamed "Second Generation Captain America", was involved in shouting slogans in public several times. He even mentioned Hong Kong's independent speech in an interview with the media. After trial, he was convicted of inciting others to split the country. The original trial judge stated that the circumstances were serious. The "Serious Circumstances" in the "Hong Kong National Security Law" sentenced Ma to 5 years and 9 months in prison.
Ma believes that the sentence is too heavy, because he has no plans, no one responds to his slogans, and even if he is interviewed by mainstream media, the circumstances of his crime are minor. National Security Law cases handled by the Tribunal.
The Court of Appeal handed down its verdict today (3rd), reiterating that Ma's case was serious, but the sentence was too severe. It ruled that Ma's appeal was upheld, commuting his sentence by 9 months and changing his prison sentence to 5 years.
The Court of Appeal agrees that the category is serious but lesser
The Court of Appeal held that the case was in the serious category, but the lesser of that category, and listed 10 considerations, but held that Ma's sentencing threshold should be closer to 5 years.
The judge in the first instance took 6 years of imprisonment as the starting point for sentencing, which was obviously excessive.
The Court of Appeal took 5 years and 3 months in prison as the starting point for sentencing. The trial judge saved court time and deducted his sentence of 3 months due to his defense.
Ma Junwen, nicknamed "Second Generation Captain America", has often appeared in demonstrations in the past.
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The appellant, Ma Junwen (31), was convicted of inciting others to split the country.
The charge alleges that between August 15 and November 22, 2020, he incited others to organize, plan, carry out or participate in the implementation of acts aimed at splitting the country and undermining national unity in Hong Kong.
Separating the Hong Kong Special Administrative Region from the People's Republic of China, or illegally changing the legal status of the Hong Kong Special Administrative Region, whether or not the use of force or the threat of force.
If the circumstances are serious, he will be sentenced to 5 to 10 years in prison
When the case was tried in the District Court, the original judge, Chen Guangchi, believed that the circumstances of the case were serious. According to the "Hong Kong National Security Law", the "serious circumstances" guideline, sentenced to more than 5 years, but not more than 10 years in prison, and finally sentenced Ma to 5 years and 9 years in prison. moon.
The original judge once pointed out that Ma used the demonstration to gain a sense of existence
Ma Que pointed out that the plot of the case was light. He had no detailed plan, and the slogans he called were vague, and no one echoed the scene. He had been interviewed by online media, and he was not a mainstream media, so his influence was limited.
Chen Guan once pointed out that Ma "sense of presence" through the demonstrations. Ma's lawyer pointed out that this further shows that Ma's actions did not endanger national security.
When the original judge Chen Guangchi sentenced the case, he pointed out that the case of the appellant Ma Junwen was a serious case, and the sentence standard of 5 to 10 years was adopted.
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The difference of severity can refer to the principle of sedition
In his judgment, the judge of the Court of Appeal stated that although the National Security Law does not contain provisions to define what constitutes serious or minor circumstances, but based on its legislative intent to be compatible and complementary with local laws, when considering the gist of the crime of "inciting secession", it can be cited. The common law offence of "sedition", taking into account its related principles.
The seriousness of the circumstances of this case should be determined by the overall actual situation, focusing on the perpetrator's behavior, actual consequences, potential risks, etc. Therefore, the factors that the court should consider include the circumstances, methods, frequency, duration, scale, The object of incitement, and whether there is any premeditated plan, involving force, or complicity in committing crimes, etc.
Society is still affected by riots, Ma still insists on committing crimes
The judge of the Court of Appeal believed that the case was "serious" and pointed out that after the implementation of the "Hong Kong National Security Law", there were still small-scale illegal assemblies in the community, and the society was still affected by violence, which showed that Hong Kong was still facing harm at that time. Risks to national security and the rule of law.
Under such circumstances, Ma still insists on committing the crime, which will undoubtedly seriously increase the risk of harming national security and the rule of law.
Ma blatantly misrepresented that Hong Kong independence is not illegal
In addition, Ma blatantly undermined the "Hong Kong National Security Law" many times, and preached to the public that "Hong Kong independence" is not illegal. This not only seriously challenges the authority of the "National Security Law" and the foundation of Hong Kong's constitution and the rule of law, but also confuses the public and induces Others mistakenly believe that the act of "Hong Kong independence" is not illegal, increasing the risk of others committing crimes of secession.
Promoting Hong Kong independence to students is irresponsible
The Court of Appeal continued, saying that Ma chose to commit crimes on sensitive days and locations with higher risks, accepted media interviews, and promoted "Hong Kong independence" on the Internet, which undoubtedly increased the risk that the activities would turn violent and disrupt public order. He also had a premeditated plan. Before committing the crime, he launched several activities on social media and appealed to the public to participate in the crime. He brought the pre-made propaganda to commit the crime at the designated time and place, and once in the school, he promoted "Hong Kong independence" to students, which is even more irresponsible and aggravated his criminal responsibility.
Regret or not has nothing to do with the severity of the circumstances
However, the Court of Appeal agreed with the barrister that the trial judge Chen Guangchi used "no remorse" as one of the factors to define the case as "serious", and the reason was wrong, because whether Ma had remorse was only one of the factors of plea for sentencing. One, it has nothing to do with the seriousness of the plot.
Even if the trial judge made this mistake, based on the above reasons, it would not have any substantive impact on the conclusion that the case was "serious".
Taking into account the overall situation, the Court of Appeal held that Ma's criminal responsibility was relatively light in the "serious" category and the sentence should be close to the minimum sentence for the corresponding sentence, which is five years.
Therefore, the judge in the first instance took six years as the sentencing benchmark, which is obviously too heavy, and should be 5 years and 3 months. In addition, the judge in the first instance saved three months of court time due to the defense method, and the total sentence should be 5 years.
Case number: CACC272/2021
What are the four types of crimes in the National Security Law of Hong Kong?
The crimes of splitting the country, subverting state power, terrorist activities, and colluding with foreign countries or foreign forces to endanger national security.
What is the penalty for inciting, assisting, instigating, or funding others with money or property to commit crimes under the National Security Law?
If the circumstances are serious, he shall be sentenced to fixed-term imprisonment of not less than 5 years but not more than 10 years; if the circumstances are relatively minor, he shall be sentenced to fixed-term imprisonment of not more than 5 years, criminal detention or public surveillance.
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