Case Summary and Outcome

The Hong Kong Special Administrative Region Court of Appeal dismissed the application of Tam Tak-Chi, a pro-democracy activist and radio host, seeking leave to appeal his conviction on sedition and public order charges. Tam Tak-Chi was found guilty by the District Court on 11 out of 14 charges, including uttering seditious words, inciting unauthorized assemblies, and organizing unauthorized assemblies, based on his speeches criticizing the government, the National Security Law, and the Chinese Communist Party between January and July 2020. The Court of Appeal upheld the District Court’s rulings on the constitutionality of the sedition laws, the interpretation of Tam Tak-Chi’s statements like “Liberate Hong Kong, Revolution of Our Times” as seditious, and the lack of requirement for an intention to incite violence for sedition charges. It also affirmed the 40-month sentence imposed on Tam Tak-Chi, rejecting arguments about excessive punishment and mitigating factors like freedom of assembly. The Court emphasized the importance of safeguarding national security while acknowledging restrictions on freedom of expression must meet legal certainty and proportionality criteria. It found the sedition laws constitutional and rationally connected to protecting public order.

Facts

On September 6, 2020, Tam Tak-Chi, the Respondent, a well-known radio host of “Fast Beat” and Vice-Chairman of the pro-democracy political party “People Power” in Hong Kong, was charged with 8 charges inter alia with public order offense, such as incitement to take part in an unauthorized assembly, holding an unauthorized assembly, disorderly conduct, and conspiracy to utter seditious words, based on a series of public events he spoke at between January and July 2020. Earlier, Tak-Chi was arrested on multiple occasions, January 25, 2020; May 24, 2020, and July 17, 2020, by the police authorities concerning his public addresses under charges of incitement to take part in unauthorized assembly and disorderly conduct in a public place, however, he was granted bail in these arrests. [para. 8]

After his arrest in September, the Hong Kong authorities also framed allegations under the Colonial-Era Sedition Law to arrest and prosecute Tam Tak-chi for “uttering seditious words” at these events, including political slogans such as “Liberate Hong Kong, the revolution of our times”, criticism of the 2020 National Security Law, and insults and criticism of the Chinese Communist Party and the Police.  During the time Tam Tak-chi was arrested, the Hong Kong authorities had introduced the National Security Law. Some of the provisions of the National Security Law concerning the incorporation of a “National Security Judge” were applied to Tak-Chi’s trial leading to a total of 14 charges. On September 8, 2020, Tak-Chi applied for the bail before the Magistrate Court holding a sign in court that said “You want me to shut up? I’ll speak even louder.” The Magistrate Court denied his bail and remanded him to custody. On November 17, 2020, the Court again denied his bail application. 

District Court Decision 

On March 2, 2022, the Trial Court (District Court) found Tak-Chi guilty and convicted him on 11 charges out of 14 charges.  Judge Chan Kwong-Chi of the District delivered the conviction ruling. The District Court first determined issues including the constitutionality of the sedition provision and interpretation of Tam Tak-Chi’s statement and later adjudicated upon the charges. 

The prosecution called seven witnesses to support their claim, inter alia including police officers and individuals at various rallies organized by Tam Tak-Chi. These witnesses testified about Tam Tak-Chi’s actions and speeches, highlighting instances where he incited crowds, chanted slogans, and distributed materials advocating for the separation of Hong Kong from China. The Prosecution also introduced video evidence from different events, illustrating Tam Tak-Chi’s involvement in unauthorized assemblies and his use of provocative language against the government and law enforcement. Additionally, the Prosecution relied on expert testimony from Professor Lau Chi-pang, a history professor, who analyzed the slogan “Liberate Hong Kong, Revolution of Our Times.” Professor Lau’s interpretation supported the Prosecution’s contention that the slogan inherently implied secessionist intentions and aimed to separate Hong Kong from the People’s Republic of China. [paras. 7-33, District Court]

On the other hand, Tam Tak-Chi relied on the expert opinion of Professor Leung, who contested the Prosecution’s interpretation of the slogan “Restore Hong Kong, Revolution of Our Times.” Professor Leung criticized the Prosecution’s expert, Professor Lau’s interpretation, for providing an incomplete description of the term “restoration.” Using extensive linguistic analysis, Professor Leung argued that the term “光復” (“Guangfu”), translated as “restore” in the slogan, had a broad meaning of restoration or recovery, encompassing various contexts like recovering old viewpoints or rectifying social and political problems. She also examined the term “revolution” in different non-political contexts, emphasizing its usage beyond political revolutions, such as technological or agricultural revolutions. Professor Leung cited examples and news reports to demonstrate the diverse interpretations of the slogan and argued that it represented a call to solve problems, return to an ideal state, and bring Hong Kong back to a desirable condition. [paras. 34-42, District Court]

Moreover, Tam Tak-Chi also challenged the Constitutionality of Sections 9 and 10 of the Crimes Ordinance. Tam Taki-Chi contended that Articles 27 and 39 of the Hong Kong Basic Law and Article 16 of the Bill of Rights emphasize the multiple freedoms of Hong Kong residents, including the right to freedom of expression. He further contended that the legal definition of a criminal offense must be sufficiently precise to enable the public to know in advance or to seek appropriate advice on whether an act is lawful or unlawful. [para. 43, District Court]

Tam Tak-Chi contended that the Crimes Ordinance lacked a precise and clear definition of seditious words, making it difficult to establish a legal basis for the charges. He contended that in the diverse and pluralistic society of Hong Kong, it was challenging to determine a uniform and objective standard for judging seditious intent, rendering the charge unconstitutional. Tam Tak-Chi further invoked the principle of proportionality, contending that the incitement offenses were disproportionate and did not strike a reasonable balance between legitimate aims and restrictions on freedom of speech. Tam Tak-Chi referred to Hysan Development Co Ltd v. Town Planning Board, (2016) and emphasized the lack of a legitimate aim in the ordinances and pointed out that the failure to prosecute sedition charges since the 1970s indicated the incompatibility of the law with modern human rights standards.

In lieu of the arguments, the Court before determining the charges framed against Tam Tak-Chi adjudicated on three issues, i.e., the constitutionality of the offense of publishing seditious words; the meaning and nature of Tam Tak-Chi’s statement “Restoration of Hong-Kong Time Revolution” and the text against the National Security Act/Communist Party. [para. 51, District Court] 

On the Constitutionality of the offense of sedition, the District Court considered Tam Tak-Chi’s argument, that the definition of “seditious intent” was overly broad, making it challenging for the public to understand and comply with the law. Furthermore, the Basic Law and Bill of Rights protect the fundamental right to freedom of speech and expression. The District Court noted that the fundamental importance of free speech and assembly is not absolute and is subjected to limitations and restrictions. The Court noted that Sections 9 and 10 of the Ordinance targeted offenses against the state, the administration of justice, and individuals within the community. The District Court asserted that, although offenses under these sections had been in place for a long time, they required flexibility to adapt to changing circumstances. [paras. 52-55, District Court]

Considering the above, the District Court held that Section 9 of the Ordinance, in setting out the non-incendiary exceptions, seeks to strike a proportionate and sensible balance, a balance that is informed by considerations of regionality and local social circumstances. The District Court held that “sedition is an offense against national security under the existing laws of the SAR, and it is natural that restrictions should be imposed to protect national security. It is also in the collective interest of the community to achieve social peace and order.” [para. 57] The Court dismissed the defense’s argument that the lack of prosecution under the Ordinance since the 1970s indicated its incompatibility with modern human rights law, emphasizing that several factors could contribute to this decision, such as changes in the political and social landscape. The District Court concluded that, in line with the Basic Law and the Bill of Rights, the offenses under the Ordinance were constitutional and aimed at protecting national security. [para. 58, District Court] 

On the meaning and nature of Tam Tak-Chi’s statement “Restoration of Hong-Kong, Revolution of our Time,” the Court highlighted that this was not the first time the Court had examined this slogan and acknowledged the Prosecution’s expert’s interpretation that the slogan aimed to separate Hong Kong from the People’s Republic of China. The District Court noted that Tam Tak-Chi attempted to reinterpret the slogan based on linguistic analysis and had claimed that the slogan’s meaning depended on who used it and the context, citing various sources, including Google Trends and interviews, to contend that the slogan had multiple interpretations and lacked a specific meaning. However, the Court accepted the Prosecution expert’s interpretation that the slogan primarily advocated the separation of Hong Kong from the People’s Republic of China. The District Court found that Tam Tak-Chi’s argument was not sufficient to refute this interpretation, and the use of the slogan was consistent with an intent to separate Hong Kong from the People’s Republic of China. [paras. 59-68]

On the issue of texts against the National Security Act or the Communist Party, the Court concluded that Tam Tak-Chi’s statements regarding the National Security Act and the Communist Party did not merely point out shortcomings but rather constituted incitement against these entities. It noted that Tam Tak-Chi’s speeches were politically charged, and he incited others to disregard the National Security Law, challenge the police’s authority, and engage in violent actions against pro-establishment legislators. The Court disagreed with Tam Tak-Chi’s interpretation of the relationship between “Her Majesty” and the “Government of Hong Kong” and found that Tam Tak-Chi’s criticisms extended beyond mere exposition and legitimate criticism. The Court emphasized that the case’s focus was on Tam Tak-Chi’s seditious writings against the SAR Government, which holds public power. [paras. 69-74, District Court]

After addressing the primary issues, the Court adjudicated the charges framed against Tam Tak-Chi. The District Court convicted Tam Tak-Chi of knowingly inciting others to participate in an unauthorized assembly. The Court found that the Tam Tak-Chi repeatedly called for people to join an unauthorized procession, regardless of its finish line, and engaged in abusive language against the police. [paras. 75-80] On the charges related to the publication of seditious writing and material, the Court convicted Tam Tak-Chi and ruled that Tam Tak-Chi used derogatory language and made seditious accusations against the police and the government, with the intent to arouse hatred and contempt for the authorities and incite rebellion. The District Court held that Tam Tak-Chi’s calls to disband the police force was an unlawful attempt to change Hong Kong’s legally established framework. [paras. 81-82, 96-100, District Court]

On the charges of disorderly conduct in public places, the District Court found Tam Tak-Chi not guilty. While Tam Tak-Chi used abusive language, the Court determined that his conduct did not escalate into a breach of the peace or disrupt social order. Therefore, Tam Tak-Chi was acquitted of the said charge. [paras. 83-95, District Court]

On the charges of holding an unauthorized assembly, refusing to obey police orders, and uttering seditious words, the court found Tam Tak-Chi guilty due to his attempts to organize unauthorized assemblies, resist police warnings, and publish seditious materials with the intent to provoke hatred and disobedience. The Court also found Tam Tak-Chi guilty of publishing inciting words. The District Court determined that Tam Tak-Chi’s statements were meant to stir dissatisfaction with the SAR, provoke disobedience to the National Security Law, and encourage hostility toward law enforcement. [paras. 118, 121, 124, 127, and 130, District Court] 

In conclusion, the District Court found Tam Tak-Chi guilty of 11 charges out of 14, which included seven counts of uttering seditious words, one count of organizing an unauthorized assembly, one count of disorderly conduct in public places, one count of inciting others to participate in an unauthorized assembly, and one count of refusal to comply with police orders. Tam Tak-chi was sentenced to 40 months in prison and fined HK $5,000 (approximately 640 USD). The Court imposed a range of sentences, including two years for inciting others to participate in an unauthorized assembly, 21 months for the sedition charges (with 12 months to be served consecutively), one month for disorderly conduct, and one-and-a-half years for holding an unauthorized assembly (with three months to be served consecutively).

Tam Tak-Chi filed an application seeking leave to appeal before the Hong Kong Special Administrative Region Court of Appeal against the conviction of the sedition charges only and the sentences for both the sedition charges and the public order charges.

Decision Overview

Chief Justice Jeremy Poon Shiu-chor, Justice Derek Pang Wai-cheong, and Justice Anthea Pang Po-kam HKSAR Court of Appeal delivered the decision. The primary question before the Court was to consider whether the leave to appeal should be granted. 

Tam Tak-Chi contended that the District Court had no jurisdiction to try the sedition charges but it was rejected by the Judge on the reasoning that despite the statutory enactments over the years, sedition remains a common law offense. He further contended that sedition is an indictable offense and is subject to the restrictions in the Second Schedule of the Magistrates Ordinance, thus a magistrate accordingly cannot transfer it to the District Court for trial. It can only be tried in the Court of First Instance. The Applicant’s contentions centered on the absence of intent to incite violence as a necessary element for a sedition charge, that whether sedition is viewed as common law or statutory offense, the intention to provoke violence remains pivotal. Since the prosecution failed to establish that the Applicant intended to incite violence, they argue that the conviction on sedition charges cannot be justified. [para. 6]

On the Issue of Jurisdiction of District Court

The High Court noted that common law offenses, i.e., offenses not created by statute, are indictable offenses that are, subject to any statutory modification, triable only on indictment. [para. 51] The Court held that Sections 9 and 10 are part of the Criminal Ordinance. Subsequently, Section 74 of the District Court Ordinance (‘DCO’) confers on the District Court criminal jurisdiction to hear and determine all such charges as the Secretary for Justice under Section 75, which allows the Secretary to set forth any indictable or summary offense charges against the accused, even if not originally included in the transfer order. Thus, the Court held that the District Court has jurisdiction to try (1) an indictable offense transferred to it by a magistrate under Part IV of the MO and (b) a summary offense included in the charge sheet under section 75(2) of the DCO. The Court referred to HKSAR v Ng Hau Yi Sidney, (2021) and noted that NSL 41(3) provides that cases concerning offenses endangering national security within the jurisdiction of the HKSAR shall be tried on indictment. [paras. 46-49]

On the sub-issue of whether the sedition law is a common law offense or codified into statute, the Court noted that it is well-established that under the common law, incitement to violence is a necessary ingredient of the offense of sedition. The Court discussed the historical development of sedition laws in Hong Kong. It noted that the Chinese Publications (Prevention) Ordinance of 1907 targeted publications disturbing the peace in Mainland China but didn’t affect local sedition laws. The Seditious Publications Ordinance of 1914 introduced comprehensive legislation against seditious publications. The 1938 Ordinance then aimed to improve sedition prevention and punishment, defining “seditious publication” and “seditious words” without including an intention to incite violence. The Court highlighted the absence of this intention as crucial in understanding the legislative intent behind the 1938 Ordinance, the precursor to current laws. [paras. 63-69]

The High Court referred to the case of Fei Yi Ming & Another v the Crown, [1952], and the appellants appealed their conviction under the 1938 Ordinance for seditious publication. One of their grounds of appeal was that the trial judge erred in instructing the jury that incitement to violence wasn’t a necessary element to be proved by the prosecution. The Full Court, referencing the precedent set by Wallace-Johnson v The King, (1940), rejected this argument. Wallace-Johnson established that the law of sedition in Hong Kong was defined by the 1938 Ordinance, not by common law principles. Additionally, the Court clarified that incitement to violence wasn’t a requisite element of the statutory offense of sedition under the 1938 Ordinance. [paras. 70-75]

Further, the Court delved into the legislative history of the 1938 Ordinance, including subsequent amendments, indicating that there was a clear intent to create statutory offenses of sedition, displacing the common law offense. This interpretation was consistent with principles of statutory interpretation, presuming legislative rationality and consideration of common law principles. Consequently, the Court held that sedition was now a statutory offense in Hong Kong, with incitement to violence not being a necessary element, except where explicitly provided for in the law. The Court rejected arguments suggesting that sedition remained a common law offense, affirming that it had been effectively replaced by statutory provisions. The Court held that Section 10 offenses, being statutory, differ from treason and are tried as summary offenses under Section 14A of the CPO, allowing transfer to the District Court under Section 88(1)(b) of the MO. In the case at hand, Sedition Charges were transferred alongside other indictable offenses, granting the District Court jurisdiction for trial. [paras. 76-83]

Considering the effect of National Security law, the Court clarified that sedition offenses, including Section 10 offenses, are not automatically indictable as common law offenses under the National Security Law (NSL) but are tried as summary offenses under existing local laws. The NSL intends to work alongside existing laws in Hong Kong, maintaining the current statutory regime for trying summary offenses related to national security. Therefore, NSL 41(3) does not transform Section 10 offenses into indictable offenses, and the District Court retains jurisdiction to try them upon transfer under the Magistrates Ordinance. [paras. 85-89]

On the issue of intention to incite violence being a necessary ingredient of sedition

Tam Tak-Chi contended that an intention to incite violence should be a necessary element of the statutory offense of sedition under the CO, citing international jurisprudence on sedition and the NSL’s reminder of human rights protections. He argued that incorporating this intention into sections 9 and 10 would uphold legal certainty and proportionality. However, the Court expressed reservations about applying the decision in Vijay Maharaj (PC) to interpret sections 9 and 10. The Judicial Committee’s views in Vijay Maharaj (PC) were considered obiter dictum, limited to the Trinidad Sedition Act, and not necessarily applicable to the CO. [paras. 91-97]

The Court noted that the legislative history of the 1938 Ordinance and the CO indicated that an intention to incite violence is not a necessary element of sedition, except under section 9(1)(f). It rejected the argument to depart from the precedent set by Fei Yi Ming, which held that such an intention is not required. While legality and proportionality are relevant legal concepts, incorporating an intention to incite violence into sections 9 and 10 would contradict the legislative intention behind the CO. Therefore, the court affirmed that such an intention is not a necessary element of the sedition offense under the CO, except where explicitly stated in the law. [para. 102]

On the issue of the constitutionality of sedition law

The Court observed that offenses under Section 10, which pertain to endangering national security, held significant importance in safeguarding national security, a primary objective of the “one country, two systems” principle in the Basic Law. At the same time, it acknowledged that the sedition charges engaged the right to freedom of expression, a fundamental right guaranteed by Article 27 of the Basic Law and Article 16(2) of the Hong Kong Bill of Rights. The Court emphasized that while this right is crucial to Hong Kong’s system and way of life, it is not absolute and may be restricted for reasons such as protecting national security or public order, as outlined in BOR 16(3). [HKSAR v Fong Kwok Shan Christine (2017) and HKSAR v Chow Nok Hang (2013)] [para. 103-104]

The Court further explained that restrictions on freedom of expression must meet the criteria of legal certainty and proportionality, as established in Hysan Development Co Ltd v Town Planning Board (2016). It underscored the necessity of a context-specific, holistic assessment to determine if these criteria are met. Additionally, the Court noted that the National Security Law (NSL) aims to balance national security and human rights protection, reaffirming that the protection of fundamental rights remains applicable. This interpretation aligned with the legislative intention of the NSL, as discussed in HKSAR v Lai Chee Ying (2021), and the principle that individuals must not endanger national security while exercising their fundamental rights, as seen in Lai Chee Ying v Secretary for Justice, (2023). The NSL’s legislative intention was to ensure convergence and compatibility with local laws, maintaining a clear distinction between the lawful exercise of rights and actions endangering national security, with the latter subjecting individuals to legal sanctions. [paras. 106-112]

The Court observed that the requirement for laws to be “prescribed by law” under BL 39 mandated the principle of legal certainty. This principle was well-settled in cases such as Shum Kwok Sher v HKSAR (2002), Mo Yuk Ping v HKSAR (2007), and Winnie Lo v HKSAR (2012). In Winnie Lo, Ribeiro PJ emphasized that a criminal offense must be clearly defined in law to enable citizens to foresee, with appropriate advice if necessary, whether their conduct is lawful or unlawful, though absolute certainty was acknowledged as unattainable. Similarly, the European Court of Human Rights in Sanchez v France, (2023) reiterated the need for laws to be accessible and foreseeable, acknowledging that some degree of vagueness was inevitable and necessary to allow laws to adapt to changing circumstances. [paras. 113-120]

The Applicant argued that Sections 9 and 10 of the Crimes Ordinance (CO) lacked legal certainty, citing various international materials critical of sedition laws for being vague and overbroad, such as the Siracusa Principles on ICCPR, 2007 Report of New Zealand Law Reform Commission on Sedition, and other international case law including R v Lohnes, (1992) from the Supreme Court of Canada, Media Council of Tanzania v. Attorney General, (2017) from the East African Court of Justice; and Attorney General of Trinidad and Tobago v. Vijay Maharaj, (2023). He contended that without an intention to incite violence as an element of the offense, Sections 9 and 10 were too vague. Additionally, he criticized the terms used in Section 9(1) such as “hatred,” “contempt,” “disaffection,” and “discontent,” arguing that applying an objective standard to these subjective feelings was impossible. The Court addressed these concerns by highlighting that sedition offenses, by their nature, could not be precisely defined but needed to set clear parameters to avoid unjustifiable interference with freedom of expression. It stated that Section 9 of the CO, when read with Section 9(2), provided sufficient clarity by prohibiting words intended to seriously undermine the legitimacy or authority of the government or to harm the relationship between the government and its inhabitants. The Court pointed out that ordinary language terms like “hatred” and “contempt” had clear meanings that could be understood with advice, if necessary. Moreover, the application of these terms by courts over time would provide further judicial guidance, ensuring the law remained adaptable to changing societal contexts. [paras. 121-125]

The Court concluded that Sections 9 and 10 of the CO satisfied the “prescribed by law” requirement. It rejected the applicant’s arguments, stating that the offense of sedition needed to be broadly framed to be effective against a wide range of potential threats to national security. The Court maintained that the definitions provided were sufficiently precise for individuals to regulate their conduct and that the need for flexibility did not render the law uncertain. The Court also noted that similar criticisms of sedition laws from other jurisdictions did not apply in the Hong Kong context, where the legal, societal, and political settings were distinct. [paras. 126-131]

Furthermore, the Court applied the four-stage proportionality test from Hysan Development Co Ltd to assess the offense of sedition. Firstly, it acknowledged that the offense pursued the legitimate aim of safeguarding national security and public order, a point conceded by the Applicant. The Court then examined whether the offense was rationally connected to this aim. Despite the Applicant’s criticisms based on the Siracusa Principles, the Court found that the seditious intentions defined in Section 9(1) were legally certain and that modern threats to national security and public order could arise from non-violent acts. Hence, the offense was rationally connected to its legitimate aim.

Next, the Court evaluated whether the offense was necessary to achieve its aim. The Applicant argued that the lack of a requirement for an intention to incite violence rendered the offense disproportionate. However, the Court disagreed, emphasizing that the offense did not inhibit open dialogue and debate essential for societal development. It also highlighted procedural safeguards, such as the requirement for the Secretary for Justice’s written consent to prosecute under Section 10, ensuring proper evaluation of the right to free expression before proceeding with the prosecution. [paras. 132-138]

Finally, the Court assessed whether a reasonable balance had been struck between societal benefits and individual rights. The Applicant contended that criminal sanctions on speech did not further societal benefits and imposed an undue burden on individuals. The Court disagreed, stressing the paramount importance of national security and public order for societal stability and development. It concluded that the societal benefits were substantial and that the restrictions imposed did not place an unacceptably harsh burden on individuals, thus satisfying the proportionality test. The Judge’s decision was upheld, affirming that Section 9 and Section 10 of the CO met the necessary legal standards. [paras. 139-145]

On the issue of the seditious nature of “Liberation Hong Kong”

The court observed that the Applicant’s objections to the Judge’s approach to interpreting the slogan were largely unfounded. Firstly, regarding the admissibility of expert evidence, the court noted that while the Applicant contended that the meaning of the slogan should be accessible to a general audience without expert interpretation, the court emphasized the need for an objective assessment. This included understanding the socio-political context in which the slogan was used. The Court referenced the need to consider factors such as the state of society, public sentiment, the audience addressed, the occasion, the venue, and the means of utterance, citing R v Burns & Orsm (1886), R v Aldred, (1909), and Boucher v The King, (1951). The Court explained that the socio-political context of the slogan’s usage was relevant and that expert evidence was appropriate for understanding its origin, usage, and development of meaning. This two-step approach involved first understanding the socio-political context and then applying this understanding to the factual circumstances in which the applicant used the slogan. The Court found that the Judge had implicitly followed this approach and that there was no substance to the Applicant’s primary complaint about the use of expert evidence, particularly as the applicant himself had called an expert witness, Professor Leung. [paras. 146-148]

In addressing the weight given to the HKSAR v Tong Ying Kit, (2021) case, the court noted that the Judge had acknowledged that the findings, in that case, were not binding as law but were considered as part of the factual background. The court found that the Judge did not err in regarding this case as influential but not determinative in ruling that the slogan bore a seditious meaning. [paras. 149-151]

Finally, regarding the conflicting expert testimonies of Professor Lau and Professor Leung, the court maintained that the Judge was within his rights to prefer Professor Lau’s evidence over Professor Leung’s. The Judge provided explanations for this preference, and the court saw no reason to disturb his decision. Even if the slogan was capable of bearing multiple meanings, including those suggested by Professor Leung, the Judge was entitled to proceed on the common ground identified by both experts, finding that the slogan, when uttered by the applicant, carried a seditious intention. [paras. 152-156]

On the issue of specific intent or basic intent

The Court observed that the Applicant’s arguments regarding the necessity of proving specific intent for a section 10(1)(b) offense were not fully addressed due to Mr. Tam’s concession and the Judge’s finding that the Applicant had a seditious intention, rendering the debate academic. The Court referenced HKSAR v Lai Man Ling, (2022) but refrained from expressing any view on the mens rea requirement, leaving it for future consideration. Additionally, the Court dismissed the Applicant’s complaints about the Judge’s failure to identify seditious words and their corresponding limbs under Section 9(1), noting that the particulars of each charge were clearly specified and matched the Judge’s findings. Furthermore, the court found no merit in the Applicants’ contention that the Judge did not consider the applicant’s political background and statutory exceptions under Section 9(2) of the Crimes Ordinance (CO). The Court highlighted that the Judge was aware of these factors and referenced them during the conviction, particularly for Charge 10. The court clarified that the conviction was based on the applicant’s words and conduct, not his motives, distinguishing between motive and seditious intention. [paras. 157-160]

In conclusion, the Court observed that the grounds for appeal against conviction lacked merit and therefore refused to grant leave to appeal. In addressing the appeal against the sentence, the Court noted that the Applicant’s arguments regarding the excessive nature of the 40-month sentence were unfounded. The Court held that the right to freedom of assembly did not mitigate the applicant’s actions, as inciting or holding unauthorized assemblies is illegal, referencing Leung Kwok Hung and HKSAR v Lai Chee Ying & Others, (2023). The court also supported the Judge’s reliance on Secretary for Justice v Poon Yung Wai, (2022) and HKSAR v Wong Chi Fung, (2022) in considering the 2019 social turmoil and the targeting of young students as aggravating factors. [para. 168]

Regarding the totality principle and mitigation, the Court affirmed that the Judge had applied established principles correctly and had not erred in rejecting the applicant’s good character and public service commitments as mitigating factors. The Court dismissed the suggestion that the Judge’s comment about the applicant’s motives was significant, deeming it an in-passing remark. Consequently, the Court concluded that the sentences for Charges 1 and 6 were neither manifestly excessive nor wrong in principle, thus denying the appeal against the sentence.  [paras. 174, 176-177]