【明報專訊】OUT OF THE 47 PEOPLE charged with conspiracy to subvert state power for organising and participating in the pro-democracy camp's ''35+'' scheme, 45 were convicted and sentenced. The judge decided that the first defendant, Benny Tai, had advocated for a revolution with his ''ten steps to mutual destruction'' and should be jailed for 10 years. The remaining defendants were sentenced to imprisonment ranging from four years and two months to seven years and nine months.

[audio 1]

This is the first case involving the offence of subversion of state power since the Hong Kong National Security Law came into effect. With no precedent available for sentencing, opinions vary on whether the sentences are lenient or severe. It remains to be seen whether the Department of Justice and the defendants will request a sentence review.

[audio 2]

Three points in the court's sentencing are worth noting. Firstly, common law principles were emphasised. The judgement states that the legislative intent of the National Security Law was to converge and be complementary with local laws; common law sentencing principles therefore apply to this case. The court defined the seriousness of the circumstances of the offence by focusing on the offenders' acts, as well as the actual consequences and possible influence caused by their acts, and that it should not rely on the sentencing examples of the Mainland courts.

[audio 3]

Secondly, it is emphasised that the defendants were not sentenced for acts committed before the implementation of the National Security Law, reaffirming the non-retroactivity of laws. Thirdly, the court emphasised that the non-violent nature of the conspiracy had been taken into account in fixing the starting point of the sentence for each defendant. While dealing with pleadings, the court accepted most defendants' plea of ''ignorance of the law'' as a reason, yet, judging from the evidence in the case, it objected to the argument that ''the 35+ scheme was doomed to fail'' as a mitigating factor.

[audio 4]

Overall, the length of jail terms is not necessarily related to whether the defendants belonged to the moderate or radical factions of the pan-democracy camp, but rather to their roles and acts in the case. Those who initiated the signing of the ''Inked Without Regret Declaration'' and requested an undertaking to ''mutual destruction'' were sentenced at a higher starting point. Those who did not plead guilty and showed no remorse when pleading for leniency were sentenced to longer prison terms.

[audio 5]

This is the national security case in Hong Kong with the most defendants so far. It took more than three years from arrest to sentencing, and many defendants were former Legislative Council members. Some have been regarded as pan-democratic moderates and fighting for the people inside and outside the legislature for many years. However, they were influenced by the intense online and offline atmosphere and embarked on the road of no return in favour of ''mutual destruction'', which is particularly regrettable.

[audio 6]

The anti-amendment storm and the ''35+'' mutual destruction scheme have pushed political struggles to extremes, but they have failed to bring about the ''final victory'' that their supporters believed in. Instead, it dealt a fatal blow to the pro-democracy camp, resulting in the near-destruction of civil society. Some people may think that the government has an easier job with fewer dissenting voices, yet the uniqueness of Hong Kong lies in its diversity, freedom and openness. In recent years, there has indeed been more ''harmony'' inside and outside the legislature than before, but many people do find it difficult to speak freely as in the past, and the stifling social atmosphere seems persistent.

[audio 7]

''One country, two systems'' is a paradoxical unity. While ''one country'' must be upheld, ''two systems'' must also be safeguarded. As Hong Kong moves towards the ''transition from order to prosperity'', it requires space for civil society to regain its vitality under the framework of ''one country, two systems.''

[audio 8]

明報社評 2024.11.20：初選案量刑強調普通法 「攬炒」後遺症須恰當處理

47人組織及參與民主派「35+」計劃，被控串謀顛覆國家政權罪，當中45人罪成判刑，法官指首被告戴耀廷的「攬炒十步」是提倡革命，判監10年，其餘被告判囚4年2個月至7年9個月不等。

今次是《港區國安法》生效以來，首宗涉及顛覆國家政權罪的案件，量刑沒有先例可援，是輕是重言人人殊，律政司及被告會否要求覆核刑期，仍得拭目以待。

法庭量刑有三點值得留意，首先是強調普通法原則。判辭指國安法立法原意是與本地法律銜接兼容，普通法判刑原則適用於今次案件，法庭界定案件情節輕重，着眼點是犯案者行為，以及其所引起的實質後果及可能影響，不應依賴內地法庭的判刑例子。

其次是強調被告判刑並非因為國安法實施前的行為，重申法律不具追溯力原則。第三，法庭強調為各被告訂下量刑起點時，已考慮了謀劃屬非暴力性質，處理求情時，亦接納大部分被告以「對法律無知」作為理由，惟考慮到案中證據，法庭不接納以「35+謀劃必然失敗」作為求情理由。

總體而言，被告入獄年期長短，跟之前屬於泛民溫和派還是激進派，並無必然關係，關鍵是他們在案中的角色及作為。有份發起簽署《墨落無悔》聲明要求承諾「攬炒」者，量刑起點較高；不認罪兼求情不見悔意者，監禁年期較長。

這是本港迄今涉及最多被告的一宗國安案件，由拘捕至判刑，歷時3年多，多名被告都曾任立法會議員。部分被告一直被視為泛民溫和派，在議會內外為民請命多年，卻受當時網上網下激烈氛圍影響，走上支持「攬炒」的不歸路，尤其令人惋惜。

反修例風暴、「35+」攬炒計劃將政治鬥爭推向極致，卻未有換來支持者所相信的「勝利終局」，反而對民主派造成致命一擊，公民社會幾近覆滅。也許有人覺得，反對聲音少了，政府更易辦事，然而多元自由開放正是香港獨特性所在。近年議會內外的確變得比以往「和諧」，可是不少人確也覺得難以像昔日般暢所欲言，遏抑的社會氛圍，似乎也總是揮之不去。

一國兩制是矛盾統一體，「一國」必須堅持，「兩制」也要維護。香港由治及興，需要讓公民社會有恢復元氣的空間，在一國兩制框架之下重拾朝氣與活力。

■/ Glossary 生字 /

complementary：two people or things that are complementary are different but together form a useful or attractive combination of skills, qualities or physical features

dissenting：having or expressing opinions that are different from those that are officially accepted

stifling：making you feel trapped and unable to do or say what you want

[audio 9]

Audio files provided by John W