Hong Kong man appeals against 8-week prison sentence for insulting Chinese national anthem

A Hong Kong man has been released on bail while he awaits an appeal against his eight-week prison sentence for insulting the Chinese national anthem at an international volleyball match last year.

Chan Pak-yui was sentenced to eight weeks in prison by the Kowloon City Magistrates Court on Monday afternoon, nearly a month after he was found guilty of insulting the Chinese national anthem during a match at the Hong Kong Coliseum last June.

Chan appealed against his conviction and sentence immediately after Judge Kestrel Lam announced his sentence. Since Chan's prison term was relatively short, Lam agreed to release him on bail pending the appeal, so as not to cause “grave injustice” to the accused if his conviction and sentence were overturned.

Chan, who was 21 years old at the time of the crime, is said to have covered his ears and remained seated when the March of the Volunteers was played before a FIVB Volleyball Women's Nations League match on June 16, 2023. He also sang Do you hear people singing?a song from the musical Les Miserables which was popular during the pro-democracy protests in 2014 and 2019.

Chan had pleaded not guilty and stood trial in April. Lam found him guilty last month after rejecting his defence that he suffers from autism and attention deficit hyperactivity disorder (ADHD). Lam ruled that the defendant had intentionally insulted the national anthem and said Chan had told police under warning that he “did not like” the Chinese team and the Chinese anthem.

On Monday, Chan's representative, attorney Steven Kwan, told the court that his client had shown “belated remorse” and regretted his actions. Chan acknowledged that his actions amounted to “disrespect” of the Chinese national anthem and he understood the consequences of his behavior, the attorney said.

Kwan argued for a lighter sentence, saying the case was not political and occurred at a time when the atmosphere in society was “relatively calmer.” The lawyer argued Chan's behavior was not “continuous” and only a handful of people saw what he did. Onlookers around Chan had previously testified that they found Chan's actions “strange” and no one was “encouraged” to commit illegal acts by his behavior, Kwan said.

The lawyer pointed to Chan's autism and ADHD to argue that punishing defendants with psychiatric illnesses should not be used to provide a deterrent to the public.

Lam said the court would examine the defendant's general medical history and whether it had affected his self-control. However, in the present case, Chan had unilaterally stopped taking his medication two days before the crime, which “significantly weakened” his defence, the judge said.

In his ruling, Lam said the national anthem law was a relatively new law and there were no binding rulings from a higher court that could serve as a guideline for sentencing in this case.

Instead, Lam cited an appeals court case involving a defendant with ADHD who was convicted of insulting the Chinese national flag. Like the national flag, the national anthem has symbolic meaning and represents the dignity and territorial integrity of China, the judge ruled.

“The national anthem must be protected. The dignity of the national anthem must be fully protected,” Lam said in Cantonese.

Lam also rejected Kwan's request for a non-custodial sentence or a suspended sentence, arguing that Chan had not shown genuine remorse.

Lam eventually settled on nine weeks in prison as an initial sentence, reducing the sentence by one week due to his medical history.

Chan was released on bail of HK$8,000. Under the bail conditions, Chan is not allowed to leave Hong Kong during the appeal and his travel documents will continue to be confiscated. He must also report to police weekly and reside at his registered address.

In 2020, Hong Kong passed a law criminalizing insults to the March of the Volunteers, China's national anthem. The law regulates the use of the national anthem and sets standards of conduct during its playing.

Violators face fines of up to HK$50,000 or three years in prison, while Chan faces a maximum sentence of two years as his case will be heard in a district court.

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