The applicant pleaded guilty before the District Court Judge to a charge of incitement to secession, contrary to Articles 20 and 21 of The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”). The judge categorized the applicant’s case as serious, warranting a prison term between 10 years and 5 years as prescribed in NSL 21. After adopting a starting point of 5 years and 6 months, the judge was minded to give a one-third discount to reflect the guilty plea but, upon submission by counsel, held that the minimum of 5 years was mandatory. She consequently sentenced the applicant to 5 years’ imprisonment. The applicant sought leave to appeal against sentence, arguing that the judge erred in (1) categorizing his offence as serious; and in (2) construing NSL 21 as mandating a minimum of 5 years’ imprisonment for serious cases and in failing to take into account NSL 33(1) to bring the sentence below 5 years. The Court of Appeal dismissed the applicant’s application for the following reasons. 1. Applying HKSAR v Ma Chun Man [2022] HKCA 1151, the Court of Appeal agreed with the Judge’s categorization of the case as serious: 1.1 As admitted by the applicant, he was one of the two administrators of the Telegram channel in question. The channel carried posts and re-posts of a secessionist nature, inciting hatred against the Central Authorities, the People’s Republic of China, the HKSAR and the police, and were related to subjects such as Hong Kong independence and anti-communism. The posts contained slogans and expressions such as “光復香港，時代革命” (“Liberate Hong Kong, Revolution of our times”) and “香港獨立” (“Hong Kong independence”). The channel organized polls and/or shared polls by others with secessionist contents, with many responses, and offered for sale weaponry and gear. The administrators also used the channel to raise funds for the secessionist cause. 1.2 The Court of Appeal took the view that although the scale and severity of violent protests had declined by the time the offence was committed, Hong Kong was still facing considerable threats and risks to national security and public disorder. The threats and risks posed by the applicant’s incitement were real. 1.3 The Court of Appeal reiterated that incitement by the use of social media is an aggravating feature. The aggravation lies in the extreme effectiveness of social media in providing a means or platform to individuals with the ease and ability to communicate or disseminate instant messages or content to a vast audience 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. Telegram is a widely used platform. The applicant used a public channel which all Telegram users could access the posts therein. There were 1,040 users who had joined and subscribed to the channel at or about the time of the applicant’s arrest, not a negligible number. 1.4 The Court of Appeal found that there were other aggravating factors in the applicant’s conduct. They included denouncing the NSL as a piece of waste paper; posting secessionist messages and videos on sensitive dates with high risks of provoking secessionist and other unlawful acts; acting in joint enterprise with another; arousing public attention and discussion in the guise of organizing and/or sharing polls; using secessionist materials with a view to advocating secession; offering for sale of weaponry and gear, thus encouraging the use of violence; and using the channel to raise funds for the secessionist cause. 2. The Court of Appeal further agreed with the judge’s finding that the offence fell within the lower end of the serious category of NSL 21. As the adopted starting point of 5 years and 6 months’ imprisonment was within reasonable bounds, there was no basis for the Court to disturb it as being manifestly excessive. 3. The Court of Appeal identified two core issues concerning the legislative intention and effect of NSL 21 and NSL 33(1): 3.1 Whether, in prescribing the range of penalty for serious offences, it is the legislative intention of NSL 21 to lay down a range of starting points between 10 years and 5 years or to set 5 years as a mandatory minimum? 3.2 Whether, in specifying the three conditions, it is the legislative intention of NSL 33(1) to set out exhaustively the mitigating circumstances that may allow the court to adjust the penalty for a serious NSL 21 offence to below the minimum of five years? 4. In ascertaining the legislative intention of NSL 21 and NSL 33(1), the Court of Appeal adopted the contextual and purposive approach laid down by the Court of Final Appeal in HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 in their construction. The Court of Appeal held thus: 4.1 The NSL was enacted against the background of grave and unprecedented national security risks in the HKSAR; and that the NSL and local sentencing laws should operate in tandem to achieve the aim of safeguarding national security in the Region, giving priority to NSL provisions in case of inconsistency. 4.2 As an integral component of safeguarding national security, preventing, suppressing and imposing punishment for NSL offences is distinctly stated in NSL 1 as a primary purpose of the NSL (“the Primary Purpose”), highlighting its immense importance in the overall scheme of the NSL. 4.3 The NSL specifically emphasizes the Primary Purpose when referring to criminal proceedings and penalty, requiring strict and full application of the NSL and local laws to effectively prevent, suppress and punish offences endangering national security: NSL 3(3), NSL 8 and NSL 42(1). 4.4 The imperative in the NSL on strict and full application of laws to further the Primary Purpose (“the Imperative”), when applied to the penalty regimes in the NSL, means that priority should be given to the penological considerations of deterrence, retribution, denunciation and incapacitation (“the Penological Considerations”). It follows that the construction of NSL 21 must give full effect to the Penological Considerations. 4.5 In the context of the NSL, because of the Imperative, not all mitigating circumstances are applicable to the sentencing of NSL offences. Only those which do not compromise the Primary Purpose are permissible. This informs the construction of NSL 33(1). 4.6 The Imperative governs the application of local sentencing laws to the sentencing of 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 Penological Considerations. To achieve the same result with NSL 33(1), local sentencing laws on mitigation can apply only if they do not compromise the Primary Purpose. 4.7 The choice of imprisonment as the only penalty option for serious NSL 21 offences and the stipulated range reflects the drafters’ judgment as to the gravity of these offences and how to give full effect to the Penological Considerations to further the Primary Purpose in their sentencing. Viewed purposively, the minimum of 5 years is mandatory. 4.8 On a proper construction, NSL 33(1) provides for three disposals by the sentencing court: (1) 從輕處罰, imposing a lighter penalty within the applicable tier; (2) 減輕處罰, reducing the penalty from the upper tier to the lower tier; (3) 免除處罰, exempting penalty. 4.9 It is the weight of the mitigation that determines if the court should從輕處罰 or 減輕處罰. 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 applicable tiers. For serious offences, whatever discount the court may give, the ultimate sentence cannot go below the mandatory minimum of 5 years’ imprisonment. In contrast, if the court decides to減輕處罰, it may reduce the penalty below 5 years’ imprisonment. 4.10 The three conditions specified in NSL 33(1) do not compromise the Primary Purpose. They are in fact conducive to achieving it because they are broadly consistent with such purpose. 4.11 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 conditions in the context of national security which may allow the court to not only 從輕處罰 (impose a lighter penalty) but also 減輕處罰 (reduce a penalty), without prejudicing the Penological Considerations or compromising the Primary Purpose. The legislative intention is plainly that as specified conditions in NSL 33(1), they are exhaustive. 4.12 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. Thus, as accepted by the respondent, other mitigating factors not specified in NSL 33(1) but recognized under the common law, such as guilty pleas, can operate in full for the court to consider 從輕處罰 (imposing a lighter sentence within the applicable tier). For whatever the discount those mitigating factors may afford, the ultimate sentence stays within the range for the tier, and thus accords with the drafter’s judgment as to the gravity of and Penological Considerations for NSL 21 offences. As such, they do not compromise the Primary Purpose. 4.13 However, these other mitigating factors cannot apply to 減輕處罰 (reducing the sentence for a serious case below the minimum of 5 years). For if they were to apply to discount the sentence below 5 years, it would contradict the drafter’s judgment as to the gravity of serious NSL 21 offences and prejudice the Penological Considerations for such offences, thereby compromising the Primary Purpose. As such, they are not compatible with either NSL 21 or NSL 33(1). 5. In conclusion, the Court of Appeal held that the applicant’s offence was correctly categorized as serious; and that his guilty plea could not apply to adjust the ultimate sentence below the mandatory minimum of 5 years. The Court of Appeal therefore upheld the imposed sentence of 5 years’ imprisonment and dismissed the applicant’s application for leave to appeal against sentence. 6. With regard to the respondent’s attempt to rely on Mainland sentencing law for the construction exercise, the Court of Appeal observed that according to the Explanation on the “Draft [NSL]” addressed to the 19th Session of the 13th 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 to strive to address the convergence, compatibility and complementarity between the NSL, and the relevant national laws and local laws of the HKSAR. 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. For the present case, the need to refer to Mainland sentencing law for construing NSL 21 and NSL 33(1) did not arise.