Case Summary and Outcome

The West Kowloon Magistrates’ Court sentenced Chu Kai Pong to 14 months in prison for making a statement with seditious intent under Hong Kong’s National Security Law. The case concerns Chu who was found wearing T-shirts and carrying items with slogans like “Free Hong Kong” and “Restore Hong Kong: Revolution Now” at Hong Kong International Airport, on his way to Taiwan. The Court emphasized the seriousness of his actions, which were seen as advocating for Hong Kong’s secession from China. While making references to previous cases on sedition and national security, the Court rejected defense arguments that minimized the offense’s gravity, noting that such actions could incite social chaos. 

Facts

On November 27, 2023, at approximately 12:32 p.m., Chu Kai Pong-the Defendant, wearing a long-sleeved T-shirt with the slogan “Free Hong Kong,” departed from his residence in Sha Tin and took a public bus to Hong Kong International Airport, located in Chek Lap Kok, New Territories. He arrived at the airport at around 3:05 p.m. the same day, where he intended to board a flight to Taiwan. Upon entering the airport, Chu Kai Pong proceeded through several areas: the departure hall, departure security area, unsecured area, and airport security area. After visiting stores, using the toilets, and walking around in the public spaces, he arrived at Boarding Gate 205 around 4:55 p.m., ready to board his flight.

Around 4:59 p.m., officers from the Airport Central Control Center (ACC), acting on a report, stopped Chu Kai Pong at the boarding gate. After searching him, Police officers discovered that Chu Kai Pong was wearing two layers of T-shirts. One of the T-shirts was a long-sleeved shirt printed with the slogan “Free Hong Kong,” while underneath it, he wore a short-sleeved T-shirt with the words “Hong Kong Independence.” Additionally, Chu Kai Pong had three more T-shirts in his bags, all featuring slogans such as “Restore Hong Kong: Free Hong Kong, Revolution Now.” The officers also found a black flag bearing the same slogan, “Free Hong Kong.”

At approximately 5:55 p.m., the Police Officials charged Chu Kai Pong with “making a statement with seditious intent” under Hong Kong’s National Security Law. Chu Kai Pong was arrested and interviewed on three occasions. During the interviews, he stated that he had intended to fly to Taiwan for a short visit starting on December 12, 2023, and planned to return to Hong Kong on July 24. He explained that the slogan “Restore Hong Kong: Revolution Now” referred to his view of turning Hong Kong into a “new city,” free from centralized control, akin to the British colonial period. He expressed that the term “revolution” signified a need for independence from China and that practical action during the 2019 social unrest in Hong Kong had inspired him.

Chu Kai Pong admitted to purchasing the seditious T-shirts during a visit to Taiwan in October 2023. Further police investigation revealed that he planned to purchase three additional T-shirts bearing incendiary slogans on his upcoming trip to Taiwan. Additionally, it was discovered that Chu Kai Pong had uploaded images to his social media account, showing him holding a banner with the phrase “Restore Hong Kong: An Era of Revolution.” The T-shirt and flag with this phrase were also found in his possession.

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 Chu Kai Pong, the Defendant was guilty of sedition under the New Security Law or not.

Chu Kai himself pleaded guilty to sedition. 

The Court began its discussion by examining the principles for determining sentences in cases involving sedition and national security offenses. It emphasized the importance of considering legislative intent when interpreting increased maximum penalties. [paras. 15-16] The Court referred to HKSAR v. Lee Tin-sang, wherein it was initially suggested that increased maximum penalties might not necessarily lead to correspondingly heavier sentences for all offenses. Citing the English case of Richardson, the Court emphasized that while increases in maximum penalties shouldn’t be applied mathematically across all cases, there should be some corresponding increase in sentences for cases of varying severity. The Court also referenced Secretary for Justice v. Lau Sin Ting, which underlined that increased maximum penalties reflect public sentiment calling for greater deterrence. [para. 19]

The Court stressed that the intention of the legislature must be taken into account when determining sentences, as it reflects the seriousness of such crimes. [paras. 21-22] It noted that the substantial increase in maximum penalties for sedition offenses in March 2024 clearly demonstrated the legislature’s position on the gravity of these crimes. The Court also highlighted that maintaining national security is a fundamental consideration in sentencing, citing HKSAR v. Ng Hau Yi Sidney [paras. 23], which classified the old “sedition” offense as a national security offense. While acknowledging that a sentence cannot be extended solely for protecting public safety, the Court, referencing HKSAR v. Chiu Wai Kan Vicken (No.2) [paras. 24-25], affirmed that it can consider national security when exercising sentencing discretion.

In the present case, the Court held that Chu Kai Pong deliberately chose June 12 – a symbolic day associated with previous protests – to wear a shirt with seditious phrases that he had purchased from Taiwan in March 2024. The Court noted that June 12 was particularly significant as it marked the beginning of road blockades in Admiralty and Wan Chai that led to subsequent riots, causing widespread disruption and damage to public facilities. [paras. 42-43] The Court emphasized the fundamental importance of protecting national security in sentencing decisions, citing several key cases. In HKSAR v Ng Hau Yi Sidney [2021], it was established that sedition was classified as a national security offense. The Court also referenced HKSAR v Chiu Wai Kan Vicken (No.2) [2011], which made an important distinction between impermissible preventive detention and permissible consideration of society’s protection in sentencing. The Court further noted that the concept of “preventive detention,” which originated from UK law and was discontinued in 1967, was not applicable in Hong Kong, as confirmed in R v Wong Pak Lam [1986]. [paras. 38-41]

In assessing the gravity of the offense, the Court found that the Chu Kai Pong’s actions went beyond mere expression of opinion. His conduct involved advocating for HKSAR’s secession from China, undermining lawful governance, and attempting to incite hatred and contempt for the SAR Government and law enforcement agencies. The Court warned that if such individual acts of incitement were allowed to continue, the cumulative effect could plunge society back into chaos. [para. 44] The Court cited HKSAR v Ma Chun Man, which established that the failure to successfully incite others was not a mitigating factor and that increased attention or response to inciting statements could increase criminal liability. [paras. 47-48]

The Court addressed several defense arguments. It rejected the claim that the short duration (25 minutes) of the offense minimized its severity. The Court also dismissed arguments about the interpretation of the “five demands” slogan, stating that the Defendant’s understanding of the slogan was less relevant than his criminal intent to incite the public. The defense’s suggestion that the public was now more aware of national security laws and therefore less easily incited was also rejected, with the Court noting that deterrence aimed not only at preventing others from following suit but also at deterring those who already shared the Chu Kai Pong’s beliefs. [paras. 49-51] The Court found Chu Kai Pong’s previous conviction in January 2024 for a similar offense to be a significant aggravating factor. The fact that he had purchased the seditious shirt in Taiwan in December and committed the new offense shortly after his release from prison demonstrated that the previous penalty had not effectively deterred him. The Court noted that the current offense was more serious as it involved a sensitive date. [paras. 53-54]

Taking all factors into consideration, the Court established a starting point of 18 months imprisonment. This was increased by three months due to the aggravating factor of the Chu Kai Pong’s previous conviction, bringing the total to 21 months. However, the sentence was then reduced to 3 months in recognition of the Chu Kai Pong’s guilty plea. The Court found no other mitigating factors that would warrant a further reduction in the sentence. [paras. 55-56] The Court’s reflected a strong emphasis on the preventive nature of sentencing in national security cases and the need to deter both the individual Chu Kai Pong and others from committing similar offenses. [paras. 44-45]