The Hong Kong Court of First Instance upheld prison authorities’ refusal to grant remission to a prisoner convicted of offenses “endangering national security” on Friday. The case marks the first judicial review against the Safeguarding National Security Ordinance (SNSO) enacted by the region’s legislature in March of this year.

The petitioner, Ma Chun Man, had asserted that recent SNSO provisions failed the “prescribed by law” requirement, amounting to arbitrary detention contrary to Articles 5 and 6 of the Hong Kong Bill of Rights Ordinance and Article 28 of the Basic Law. Rejecting this argument, the court maintained that requiring the petitioner to serve his full sentence allows him an opportunity to reform and rehabilitate. The court also emphasized that the new provisions do not prolong the sentences but also mandate the Correctional Services Department (CSD) commissioner to review his decision annually. In addition, Judge Alex Lee compared the definition of national security under Hong Kong laws and the working definition of national security in Kennedy v. United Kingdom, holding that the former is “no less precise” than the latter, which survived convention scrutiny before the European Court of Human Rights.

The court also rejected the contention that the refusal of remission was tainted with procedural unfairness. Judge Lee held that the commissioner had already given the petitioner a reasonable and sufficient opportunity to prepare his case. Judge Lee also found that the commissioner’s decision was not irrational or Wednesbury unreasonable.

Judge Lee further held that Ma was not entitled to a legitimate expectation from the general practice of the CSD because the commissioner would act contrary to the law to grant remission to Ma after he concluded that Ma failed the national security test.

Following the decision, Ma will have to finish his remaining one-third sentence.

Ma was initally convicted of incitement to secession under the 2020 National Security Law. After the appellate court reduced his sentence to 5 years imprisonment, Ma was expected to be released on March 25 based on the common practice of the CSD to grant one-third remission to inmates on the grounds of their “industry and good behaviour” under Rule 69 of the Prison Rules. Nonetheless, the newly-enacted SNSO barred the CSD commissioner from granting remissions unless he is satisfied that such remission will not be contrary to national security interests (national security test) under SNSO Sections 152 and 163. Accordingly, the commissioner denied Ma’s remission. Ma challenged this decision and the legal provisions.