In the wake of the enactment of the Basic Law Article 23 National Security Law in March of this year, Hong Kong is about to witness its first judicial review regarding this legislation. Nicknamed the “Second Captain America,” Ma Chun Man, who was convicted of inciting secession in 2021, was sentenced to five years in prison. Originally scheduled for early release on March 25 of this year, Ma’s release was postponed until at least November next year due to the new arrangements under Article 23. Last Friday, Ma filed an application for judicial review at the High Court, questioning the retroactive effect of the new arrangements, alleging that they infringed on his personal freedom protected under the Human Rights Act. He demanded the court declare the new arrangements unlawful, order their modification, immediate release, and sought compensation from the Correctional Services Department.
The applicant, Ma Chun Man, cites the Commissioner of Correctional Services as the proposed respondent. Through his legal team, Ma pointed out in the application that he has been serving a sentence at the Tong Fuk Correctional Institution since November 24, 2020, for 40 months. He was informed on February 24 of this year that he could be released early on March 25. However, on the day the National Security Legislation Bill came into effect on March 23, two days before his potential early release, he was told in the morning that he would undergo an evaluation by two psychologists to compare his current mental state with that of a year ago. That evening, he was informed that he had lost the right to early release this year and would have to continue serving his sentence for at least another year, pending the Commissioner’s review next year.
According to the application, feeling greatly aggrieved by the incident, Ma was feared to have a significant impact upon learning that he would not be released early. Consequently, he was hospitalized for two days. On March 25, Ma was informed by the “Prisoners Review Committee for committing crimes endangering national security” of the reasons why he could not be released early, linking the incident to the new amendments to the Prison Rules.
The applicant disputes the risk of abusing discretionary powers when the Commissioner considered the “threefold denial test” of “prisoners not being granted parole unless it does not endanger national security.” He questions the constitutionality of the Commissioner’s decision to postpone the review for a year, believing that the applicant was deprived of rights two days after the new amendment to Article 23 came into effect. They challenge the legitimacy of the decision-making authority of the “Prisoners Review Committee for committing crimes endangering national security,” rather than the Commissioner, with little guarantee of a fair hearing process, resulting in Ma having to serve at least another year, which they deemed unreasonable.
The applicant mentioned that the review committee was not properly constituted, and Ma Chun Man was unaware of its scope of power. The committee only mentioned that it based its decision on Ma’s behavior in prison, progress in rehabilitation, and psychological assessment, ruling against granting him parole. They argue that the committee overstepped the Commissioner’s authority. Furthermore, the summary of the case considered by the committee submitted to the Commissioner stated that there were no apparent cognitive issues with Ma, only indicating his lack of enthusiasm in rehabilitation activities, passive behavior, and reluctance to express his true feelings. The committee noted they had no information to suggest that granting Ma parole “would not endanger national security,” hence not recommending his case to be referred to the Parole Board for consideration.
According to Section 69A of the Prison Rules, prisoners demonstrating diligence and good behavior can be eligible for parole. However, the new restrictions under Article 23 raise the threshold for deserving early release for inmates convicted of national security offenses. It specifies that unless the Commissioner acknowledges “no risk posed to national security,” such prisoners cannot be released early, nor will their cases be referred to the Parole Board for consideration. Regardless of when an inmate was sentenced – before, on, or after the effective date, the new amendments apply, and if parole is denied, the Commissioner must review the decision annually.
Case Number: HCAL979/2024