Case Summary and Outcome

The Hong Kong Court of Final Appeal held that sedition offenses under section 10(1)(b) of the Crimes Ordinance do not require proof of an intention to incite violence or public disorder. The appellant, Tam Tak Chi, was convicted of seven seditious speech offenses, such as inciting and organizing unauthorized assemblies and criticizing the government, the National Security Law (NSL), and the Chinese Communist Party, committed between January and July 2020. The Court rejected Tam’s jurisdictional challenge and affirmed that sedition in Hong Kong has been governed by statute since 1938. It concluded that the legislative history and plain language of the law establish multiple alternative forms of seditious intention, any one of which suffices for conviction without the need to prove intent to incite violence.

Note: The appeal principally concerned transitional issues, as the relevant statutory provisions were repealed by the Safeguarding National Security Ordinance (SNSO) on March 23, 2024.

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Facts

Tam Tak Chi was charged with seven offenses of uttering seditious words contrary to section 10(1)(b) of the Crimes Ordinance (CO), in addition to several offenses under the Public Order Ordinance (POO). The CO offenses were alleged to have been committed between January 17 and July 19, 2020, including inciting and organizing unauthorized assemblies as well as criticizing the government, the NSL, and the Chinese Communist Party. These acts spanned the period before and after the NSL came into force on June 30, 2020. The POO offenses occurred between January 19 and May 24, 2020, prior to the NSL’s enactment. On November 4, 2020, the Secretary for Justice successfully applied to transfer all charges from the Magistrate’s Court to the District Court for trial. [paras. 2–5]

Following the trial in the District Court before Judge Stanley Chan, Tam was convicted and sentenced to 18 months’ imprisonment for each of the seven CO sedition offenses, with 3 months to run consecutively, totaling 21 months for those offenses. He was also sentenced to 28 months for the POO offenses, with 12 months to run consecutively with the sedition sentences, resulting in a total of 40 months’ imprisonment. The Court of Appeal dismissed Tam’s appeal, upholding the District Court’s ruling on the constitutionality of the sedition laws, its interpretation of Tam’s statements (such as “Liberate Hong Kong, Revolution of Our Times”) as seditious, and the conclusion that an intention to incite violence is not required for sedition charges. [para. 6]

The Court of Final Appeal granted leave to hear the case on two certified questions: first, whether sedition offenses were indictable and thus had to be tried in the Court of First Instance rather than the District Court; and second, whether proving these offenses required the prosecution to establish an intention by the defendant to incite third parties to violence or public disorder. [para. 7]

Note: Tam had already served his sentences by the time of the Court of Final Appeal hearing, and the government acknowledged there would be no retrial regardless of the outcome.

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Decision Overview

The Court of Final Appeal unanimously dismissed the appeal. The primary issues were whether the District Court had jurisdiction to try sedition offenses, which the Court confirmed, and whether such offenses require proof of an intention to incite violence or public disorder.

Tam Tak Chi contended that despite the enactment of the Sedition Ordinance 1938 and subsequent legislation, sedition had remained a common law offense requiring proof of an intention to incite violence or public disorder. He contended that this intent remained an essential element under CO section 10(1)(b) and that prior decisions to the contrary should be overturned. Tam’s counsel relied heavily on the recent Privy Council decision in Attorney General of Trinidad and Tobago v Vijay Maharaj, where the Board suggested it might now be possible to imply that intent to incite violence is needed in sedition cases. He further argued that the 1970 amendment adding “to incite persons to violence” merely created two separate categories of seditious intention and did not alter the alleged common law requirement for the other categories. [paras. 12, 49, 51, 56, 67–68]

The Prosecution, by contrast, cited the Crimes (Amendment) (No. 2) Bill 1996, which sought to add language requiring intent to cause violence to the sedition offense. The Prosecution argued that the failure of this bill demonstrated that the CO did not incorporate a common law intent requirement. It emphasized that the plain language of section 9(1) of the CO delineates several distinct forms of seditious intention, of which incitement to violence is only one, and that the legislature had deliberately departed from the common law. [paras. 19–22, 58–59]

The Court rejected Tam’s argument that intent to incite violence or public disorder was required. After reviewing the legislative history, from the Sedition Ordinance of 1938 through later amendments, it concluded that the statute had displaced the common law offense. The Court highlighted that the 1970 amendment introduced “to incite persons to violence” and “to counsel disobedience to law or any lawful order” as separate categories, in addition to preexisting forms like “an intention to bring into hatred or contempt” or “to excite disaffection.” The Court reasoned that had incitement to violence already been an element of all forms of seditious intention, these additions would have been redundant.

Agreeing with the Prosecution, the Court reiterated that the failed 1996 amendment demonstrated a legislative intent to modify the CO to reflect English common law, which itself did not require intent to incite violence for all seditious intentions. [paras. 52–59] It held that section 9(1) of the CO clearly delineated various forms of seditious intention separated by “or,” with incitement to violence under section 9(1)(f) being just one among several. [paras. 60–61]

Section 9(1) of the CO, as it then stood, defined a “seditious intention” as an intention:

“(a) to bring into hatred or contempt or to excite disaffection against [the Central People’s Government] (“CPG”), or against [the Government of the HKSAR (“HKSARG”)] or

(b) to excite [the inhabitants of the HKSAR] to attempt to procure, otherwise than by lawful means, of any other matter in [the HKSAR] as by law established; or

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in [the HKSAR]; or

(d) to raise discontent or disaffection amongst [the inhabitants of the HKSAR];

(e) to promote feelings of ill-will and enmity between different classes of [the population of the HKSAR]; or

(f) to incite persons to violence; or

(g) to counsel disobedience to law or to any lawful order.”

The Court also relied on Wallace-Johnson v The King [1940] AC 231, where the Privy Council rejected a similar argument, and Fei Yi Ming and Lee Tsung Ying v R (1952) 36 HKLR 133, which applied Wallace-Johnson in Hong Kong. It dismissed Tam’s reliance on Attorney General of Trinidad and Tobago v Vijay Maharaj [2023] UKPC 36, finding it distinguishable and that the relevant observation was not part of the decision rationale. [paras. 65–74]

Additionally, the Court rejected the application of the principle of legality, holding that sections 9 and 10 of the CO were not general or ambiguous but were specific, deliberate provisions designed to restrict certain forms of speech. It noted that section 9(2) preserved the right to make constructive criticism, thus balancing the right to free expression. The Court also found it significant that the new Safeguarding National Security Ordinance (SNSO) reaffirmed that intent to incite violence is only one possible form of seditious intention, maintaining continuity with the statutory framework in place since 1938. [paras. 75–82]

In conclusion, the Court dismissed the appeal, holding that sedition offenses under the CO do not require proof of an intention to incite violence or public disorder for a conviction.

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