Case Summary and Outcome

The West Kowloon Magistrates’ Court in Hong Kong sentenced Au Kin Wai to 14 months in prison for sedition following his guilty plea. The case concerned Au’s maintenance of four social media accounts where he posted 239 alleged provocative messages advocating for the overthrow of the central government and promoting revolution against lawful authorities. The Court evaluated the nature and seriousness of the offenses, considering Au’s previous conviction for similar activities and the impact of his posts on national security. While acknowledging Au’s age and circumstances, the Court emphasized the need for a deterrent sentence to address the potential threat posed by such seditious content, ultimately arriving at a final sentence of 14 months after adjustments for his guilty plea.

Facts

Between March 23, 2024, and June 19, 2024, Au Kin Wai, Defendant created four accounts on popular online platforms, including Facebook, X (formerly Twitter), and YouTube. These accounts were created between February and March 2024. During this period, the Au Kin posted 239 alleged provocative messages, which included statements, photos, images, and videos that mainly advocated for the overthrow of the central government, the resignation of national leaders, and the ousting of the Chief Executive of Hong Kong. The content also contained derogatory remarks about the Hong Kong police force and encouraged revolution. One notable example presented in Court was a video post containing the slogan: “Revolution is not guilty, rebellion is justified.”

On June 19, 2024, the Police Officials arrested Au Kin Wai, on suspicion of committing sedition. Upon his arrest, Au admitted under caution that he was responsible for the posts. He later confirmed during a video interview that he was the administrator of all four social media accounts and explained that his purpose in making the posts was to disseminate a political manifesto. The prosecution contended that Au’s posts aimed to incite hatred, contempt, and disaffection toward the central and Hong Kong governments and their institutions, encouraging rebellion against lawful authorities. 

At the time of the offense, Au was 58 years old, unmarried, and had received education up to Form Five. He had been unemployed since 2001 and was dependent on financial support from his father and Hong Kong’s Comprehensive Social Security Assistance (CSSA). He had no political connections or affiliations. Furthermore, Au had a previous conviction for a similar offense, having been sentenced to six months in prison in December 2023 for seditious activities.

Decision Overview

Chief Magistrate So Wai Tak of the West Kowloon Magistrates’s Court delivered the decision. The primary issue before the Court was to determine whether Au Kin Wai, the Defendant was guilty of sedition or not.

Au Kin Wai pleaded guilty to the offense. However, he sought a lighter sentence considering his age and physical health.

The Defense contended that the inflammatory content posted by Au Kin Wai was primarily forwarded from others and lacked originality or advocacy of violence, characterizing it as repetitive and more of an emotional outburst than a serious call to action. [para. 6] The defense maintained that the case was less severe compared to other similar offenses handled by the Magistrates’ Court. Additionally, they highlighted the revision of the “maximum penalty” under the Regulations on Safeguarding National Security (promulgated on March 23, 2024) and its implications on sentencing. [para. 7] The defense also referenced HKSAR v. Li Tiansheng to argue that the increase in the maximum penalty primarily addressed the most serious cases and should not automatically result in heavier sentences in less serious cases. [para. 11-12] Furthermore, they questioned the preventive nature of the crime and pointed to HKSAR v. Ma Chun-man to differentiate between incitement as a preparatory crime and the present case, suggesting that the sentence should not be overly deterrent. [para 19]

The Court, in addressing the revision of the maximum penalty, clarified that the increase was intended to allow for more severe penalties in cases of the utmost gravity but did not necessarily mandate proportional increases in all cases. [para. 12] The Court of Appeal had previously emphasized in HKSAR v. Chan Kwok Fai that the increase in the maximum sentence should not be applied mathematically and that while the most serious cases may warrant higher penalties, sentences for lesser offenses should not be automatically scaled up. [paras. 13-14]

In considering the current case, the Court took into account the legislative intent behind the March 2024 amendments, recognizing the heightened concern regarding incitement crimes and the need for stronger preventive measures to safeguard national security and social order. [para. 17] The Court emphasized that even though the Au Kin had not advocated violence, his repetitive posting of seditious content posed a serious threat by potentially influencing public sentiment and spreading dangerous ideas. Therefore, a deterrent sentence was necessary to prevent further offenses and discourage similar behavior in society, with preventive measures forming a key element in the Court’s sentencing considerations. [para. 19]

In the Court’s discussion of the defense’s submission concerning Au’s criminal history and present situation, the Court acknowledged that the handling of the accused’s past conviction record should follow established principles. The defense cited various cases, including the principles derived from HKSAR v. Ho Yung Yin and HKSAR v. Har Tsz Yui, to argue that the accused’s previous criminal record, while it may be considered an aggravating factor in sentencing, should not lead to a disproportionate or preventive sentence. The Court emphasized that a criminal conviction record indicates the failure of past punishments to deter the accused, but does not justify re-punishing Au Kin for past offenses. [para. 20] The Court clarified that if the accused is not a repeat offender, the previous conviction record should not be treated as a significant factor in assessing the seriousness of the charge. [para. 20]

The Defense further contended, referencing the case of HKSAR v. Har Tsz Yui, that any aggravation in sentencing based on Au’s criminal record should not be calculated solely on a percentage basis, but should consider the nature and seriousness of the current offense, as well as the Au’s previous record. [para. 23] The Court agreed with this approach, acknowledging that Au’s previous offenses do not automatically justify a heavier sentence unless there is a pattern of repeated criminal behavior. However, in this case, the Court ruled that Au Kin Wai was not a habitual offender, thus diminishing the relevance of his prior convictions in determining the severity of the current charge. [para. 27]

Nonetheless, the Court pointed out that Au did have a similar conviction record, and under the ruling in HKSAR v Chau Hon Kwong, a similar previous conviction could be regarded as an aggravating factor, even if there was only a single instance of similar offending. This principle, confirmed in the case of Har Tsz Yui, allows the Court to consider Au’s past record in increasing the sentence if it aligns with the nature of the current crime. [paras. 28-29] Consequently, the Court decided that Au’s previous record could justifiably aggravate the sentence in this case. [para. 29]

Regarding the Defense’s argument against a long-term sentence, equating it with “preventive detention,” the Court rejected this claim. It highlighted that the concept of preventive detention, rooted in British law, has not been applicable in Hong Kong since 1967. Furthermore, the principle is intended for habitual offenders, which Au was not deemed to be. [paras. 30-31] Therefore, the Court concluded that it would not impose a sentence resembling preventive detention but would instead focus on other sentencing principles relevant to the case.

In considering the overarching principles of safeguarding national security, the Court reiterated that national security is a fundamental consideration in sentencing. Drawing from HKSAR v Ng Hau Yi Sidney, the Court underscored that crimes such as incitement, which threaten national security, must be addressed with appropriate legal measures to prevent further harm. The Court emphasized that protecting national security is crucial in this case, given the Au’s involvement in disseminating seditious materials that threatened public order and the integrity of the state. [paras. 32-33] While public safety alone cannot justify extending a sentence, the need to safeguard national security remains a significant consideration in the Court’s discretion.

The Court reflected on the extensive and repeated nature of Au’s conduct, which included posting seditious materials on various online platforms over a sustained period. The Court recognized that while the posts may have received limited attention, the content involved serious incitement and was capable of creating a harmful “brainwashing effect.” The potential to influence others and disrupt national security justified a robust legal response, leading the Court to adopt a sentencing starting point of 18 months. [paras. 35-41]

In conclusion, after carefully considering Au Kin Wai’s criminal conduct, techniques, intentions, and the potential risks posed to national security, the Court determined that the appropriate sentencing starting point was 18 months. Given the aggravating factor of Au’s prior conviction for similar offenses and his immediate return to criminal activity following his release from prison, the Court increased the sentence by 3 months, resulting in a 21-month starting point. With a 1/3 reduction for a timely guilty plea, the final sentence was reduced to 14 months imprisonment, with no further grounds for commutation.