Case Summary and Outcome

The Court of First Instance convicted Tong Ying Kit of incitement to secession and terrorist activities under the National Security Law for his actions on July 1, 2020. Tong displayed a flag with the slogan “Liberate Hong Kong, Revolution of Our Times” while riding a motorcycle, eventually colliding with police officers. The Court found that the slogan was capable of inciting secession, and Tong intended to communicate a separatist message. His actions were deemed a deliberate challenge to law enforcement and societal stability, involving serious violence against persons and endangering public safety. Additionally, it was determined that Tong’s failure to stop at police check lines and subsequent collision with the police was a deliberate challenge against the police and symbolized a challenge to Hong Kong’s law and order. His actions were deemed acts involving serious violence against persons and dangerous activities that jeopardized public safety and security, causing grave harm to society. The Court concluded that Tong’s conduct was aimed at intimidating the public to pursue a political agenda, with severe consequences for social stability. Tong was convicted on all counts. 

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Facts

On July 1, 2020, Tong Ying Kit, the Respondent, was alleged to have incited other people to organize, plan, commit, and participate in acts that would fall under secession or national unification, namely separating the Hong Kong Special Administrative Region from the People’s Republic of China or altering by unlawful means the legal status of the Hong Kong Special Administrative Region. On the same day, Tong was alleged to have committed terrorist activities aimed at coercing the government and intimidating the public for political purposes. Tong drove his motorcycle through police checkpoints while displaying a banner with the protest slogan “Liberate Hong Kong, Revolution of Our Times.” Cheered on by some in the crowd, he maneuvered around police lines, sometimes at high speed. However, he eventually collided with a group of police officers, injuring three. Tong faced charges of inciting secession and terrorism under Articles 21 and 24 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (National Security Law). [para. 1]

Tong’s case being the first case involving offenses under the National Security Law, several procedural issues arose before the trial could commence. The Defense contested the trial procedure, preferring a jury trial over a panel of three judges. Additionally, there was disagreement between the parties regarding the specific elements constituting each offense. A challenge was also raised against the certificate issued under Article 46 of the National Security Law by the Secretary for Justice, which directed the case to be tried without a jury. However, this challenge was pursued through judicial review and was not addressed by the Court. [para. 3-4]

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Decision Overview

Justice Hon Toh, Justice Anthea Pang, and Justice Wilson Chan of the Court of Appeal delivered the decision. The primary question before the Court was to determine whether Tong was guilty of the offense of “incitement to secession” and “terrorist activities” under Articles 20, 21, and 24 of the National Security Law. 

Primarily, the High Court discussed the elements of incitement while referring to the case HKSAR v Jariabka Juraj, (2016). It highlighted that incitement involves inducing another person to commit a criminal offense, with the intention that they will do so. The Court emphasized that the intention of the person being incited is irrelevant, focusing instead on Tong’s intent and actions in urging the commission of a crime. [paras. 16-17] The High Court referred to R v Most, (1881), wherein it was held that the publication and circulation of a newspaper article could constitute encouragement or an endeavor to persuade to commit murder, even if not addressed to any person in particular. The Jury was directed that if they believed the publication encouraged or endeavored to persuade any person to commit murder, they could convict the defendant. [para. 18-19] In R. v. Most, Lord Coleridge, CJ, affirmed that the jury was properly directed, noting that the evidence proved the defendant’s  intention for the publication to be read by subscribers/purchasers, intending to incite or encourage persons to commit murder. [para 20-22]

The High Court referred to Invicta Plastics Ltd v Clare, (1975) wherein the company faced charges of incitement related to an advertisement promoting a device capable of detecting police radar signals. Despite the Defense’s arguments about the advertisement merely encouraging readers to seek further information, the Court determined that the overall message aimed at persuading readers to unlawfully use the device. [paras. 23-25] Furthermore, the High Court referred to R v Murphy, (2014) and highlighted the Court’s consideration of a note handed to a 13-year-old, suggesting sexual activity. Here, the Trial Court contemplated whether the note and circumstances amounted to incitement. Although leaning toward directing a not guilty verdict, this case illustrated the nuanced evaluation of incitement in varied contexts, where the Court weighs the intent and effect of communication on the recipient.

 

On the first count: Incitement to Secession 

The Court noted that to determine whether Tong’s act amounts to Secession, the first question had to address the meaning of Tong’s banner with the protest slogan “Liberate Hong Kong, Revolution of Our Times.” Tong contended that the slogan meant many things and there was never one single meaning understood by everyone. [para. 41] Furthermore, Tong contended that he did nothing to incite others to commit an offense, especially that of secession because he was simply driving his motorcycle. [para. 42] Furthermore, Tong contended that there was no evidence to prove that the requisite mens rea was there when he displayed the flag on that day. [para. 43]

The Court deliberated on the interpretation of a Chinese slogan, assessing its meaning within specific contexts and historical usage. The Court considered the expert testimony of Professor Lau and the factual evidence presented regarding the meaning and context of the slogan in question. Professor Lau highlighted that the slogan was first improvised by Leung, the leader of Hong Kong Indigenous, and was intended to convey a political agenda similar to that expressed by Leung during his campaign rally in 2016. This agenda included resistance with bravery and violence to overthrow the Hong Kong Communist regime and build a country of its own. The use of the slogan in 2019 and 2020 was seen as consistent with this agenda, particularly in its association with acts of protest and damage to government property. [para. 108-112]

Professor Lau emphasized that the slogan’s two parts, “光復香港” (liberate Hong Kong) and “時代革命” (revolution of our times), should be viewed as a whole, with a close semantic connection. He concluded that the fundamental agenda of the slogan was to instigate the separation of Hong Kong from the sovereignty of the People’s Republic of China (PRC). Under cross-examination, Professor Lau explained that the slogan meant to change the government or regime to take back Hong Kong and change the era, suggesting achieving this objective through violence based on the conventional usage of the words. [para 114-116]

On the understanding of the meaning behind the slogan, Tong presented evidence from two expert witnesses, Professor Eliza W Y Lee and Professor Francis L F Lee, who offered an interdisciplinary approach to analyze the slogan’s meaning. They criticized the assumptions and conclusions of Professor Lau, arguing that the terms “liberate” and “revolution” had broader meanings beyond those identified by Professor Lau. Additionally, they contested the notion that Leung was the sole creator of the slogan, suggesting an intertextual history preceding Leung’s adoption of it for his electoral campaign. The Experts highlighted the recontextualization of the slogan during the Anti-Extradition Law Amendment Bill movement in 2019, where it took on various interpretations signifying a desire for change in Hong Kong. Professor Francis L F Lee acknowledged the ambiguity of the slogan’s meaning, suggesting that by 2020, there was no single correct interpretation, thereby neither confirming nor refuting Professor Lau’s conclusion regarding its significance. [paras. 122-126] 

The Court addressed the central issue of whether the display of the flag with the Slogan on it, in the specific circumstances of the case, could incite others to commit secession. The Court first examined whether the Slogan itself, as of July 1, 2020, was capable of conveying a secessionist meaning, emphasizing the interconnectedness of its two parts, “光復香港” (liberate Hong Kong) and “時代革命” (revolution of our times). While the Defense Experts’ analysis was critiqued for not directly addressing this question, the Court underscores that the focus should be on whether the slogan, when considered holistically, could incite secession, rather than insisting on a single interpretation. [paras. 132-136]

Acknowledging the differing perspectives of Professor Lau and the Defense Experts, the Court held that the slogan was indeed capable of bearing the meaning ascribed to it by Professor Lau, which pertains to separating the HKSAR from the PRC. Notably, the Defense Experts did not dispute the slogan’s potential secessionist connotations, acknowledging its association with ideas such as Hong Kong independence. The Court emphasized the importance of context in interpreting the slogan, considering factors like its public display during protests against the National Security Law on the anniversary of the HKSAR’s establishment. [paras. 137-139] Examining the circumstances surrounding the flag’s display, including the deliberate defiance of law enforcement instructions and the timing of the incident in relation to the National Security Law’s enactment, the Court concluded that the slogan, as displayed on July 1, 2020, was capable of inciting secession. [para. 139]

The Court further examined Tong’s mens rea. The Court noted that firstly, the deliberate manner in which Tong displayed the flag, chosen for maximum visibility on July 1, 2020, demonstrated clear intent to attract public attention and convey a particular message. Additionally, Tong’s awareness of potential breaches of the National Security Law, as indicated by the sending of a screenshot related to National Security Law warnings from his mobile phone, further supported the inference of his culpable state of mind. Furthermore, Tong’s pre-planning, evidenced by his discussions about a “safe spot” and knowledge of police checkpoints, suggested an intention to flout the law. His repeated challenges to police checkpoints underscored his determination to garner public attention and leave a significant impact. Ultimately, considering these factors collectively, the Court concluded that Tong knowingly displayed the flag with the slogan, understanding its secessionist implications, and intending to incite others to commit acts to separate the HKSAR from the PRC.

 

On the second count: Terrorist activities 

Tong contended that the collision took place due to the police. According to him, if the police had not tried to stop him while driving the motorcycle, he would not have lost control. [para. 44] 

The Court thoroughly examined Tong’s driving behavior, noting that he repeatedly ignored lawful instructions from police officers to stop his motorcycle at checkpoints 1 to 4. Despite warnings, including the firing of pepper balls at checkpoint 3, Tong continued to evade the police checkpoints, ultimately colliding with officers at checkpoint 4. The Court accepted evidence that Tong accelerated his motorcycle at each checkpoint, particularly evident at checkpoint 4, where his motorcycle’s acceleration was heard on video after overtaking another vehicle. Furthermore, the Court found that Tong’s actions posed a significant danger, especially given the close proximity to police officers at each checkpoint, ranging from 1 to 2 meters. This intentional evasion of multiple checkpoints, coupled with the proximity to officers, was deemed inherently dangerous regardless of the motorcycle’s speed. [paras. 127-130] 

Regarding the collision at checkpoint 4, expert testimony indicated that Tong’s decision to overtake a vehicle at high speed, instead of stopping as instructed, made the collision with officers unavoidable once he perceived the danger and applied the brakes. Despite Defence’s claim that Tong’s driving route indicated an attempt to avoid the police, the Court disagreed, asserting that his actions were deliberate and aimed to challenge law enforcement. Tong’s deliberate choice of route, including passing through multiple checkpoints and continuing to parade while displaying the flag with the slogan, supported the conclusion that he was intentionally challenging law and order and targeting police officers. [paras. 131-133]

 

On the third count: causing grievous bodily harm by dangerous driving

Tong contended that it was an isolated incident with limited impact and did not cause grave harm to society. [para. 46] Moreover, there was no evidence of any coercion/intimidation/pursuit of a political agenda. [para. 49] 

The Court unequivocally determined that Tong’s actions constituted acts involving serious violence against persons and other dangerous activities. Despite being instructed to stop at police checkpoints, Tong continued driving, creating a hazardous situation where officers and pedestrians had to evade his motorcycle. Notably, when approaching a police checkpoint, Tong overtook a stationary vehicle at high speed, disregarding police orders and putting officers at risk. The Defence argued against the seriousness of his actions, contending that they did not seriously jeopardize public safety. However, the Court found this argument untenable, emphasizing the inherent danger posed by Tong’s driving behavior, particularly considering the presence of pedestrians at the crash site. [para. 152-155] 

Moreover, the Court emphasized that the collision itself was proof of Tong’s engagement in acts involving serious violence against persons. Despite Defence’s assertion that serious injuries were not inflicted, the Court clarified that the nature of the act, not its consequences, determines its classification as serious violence against persons. Even if focusing solely on the collision, the Court concluded that Tong’s actions clearly met the criteria for serious violence against persons as outlined in Article 24 of the National Security Law. Thus, the Court affirmed the Prosecution’s argument that the seriousness of the act lies in its nature, irrespective of the extent of resulting injuries, which is pertinent to sentencing rather than constituting an element of the offense. [para. 156-160]

The Court emphasized that the concept of harm under Article 24 of the National Security Law extends beyond physical injury to include broader societal implications. By challenging the authority of the police force responsible for maintaining public safety, Tong’s actions instilled fear among law-abiding citizens, creating apprehension about the breakdown of societal order. The deliberate disregard for police warnings and the subsequent collision at checkpoint 4 exemplified Tong’s intent to disrupt law and order, causing citizens to fear for their safety and public security. [para. 162]

Furthermore, the Court highlighted the significance of the police force as a symbol of law and order, emphasizing that Tong’s actions targeted not only individual officers but also the fundamental stability of society. The collision resulted in injuries to officers and shocked witnesses, illustrating the profound impact on public perception and safety. Contrary to the Defence’s assertion that the witnesses’ reactions were typical of witnessing a traffic accident, the Court disagreed, underscoring the extraordinary nature of Tong’s actions and their implications for societal security. In conclusion, the Court affirmed that Tong’s deliberate challenge against the police force and his actions aimed at disrupting law and order caused grave harm to society, extending beyond physical injuries to instill fear and apprehension among citizens regarding public safety and societal stability. [para. 163] 

The Court unequivocally concluded that the display of the slogan “Liberate Hong Kong Revolution of our Time” was capable of inciting others to commit secession, considering the natural effect and the specific circumstances of the case. Moreover, Tong’s intention to arouse public attention towards separating the HKSAR from the PRC was evident, constituting a deliberate promotion of a political agenda. Even if the Tong’s understanding of the slogan differed, the Court maintained that it still advocated a political agenda, as opined by the Defense Experts. [para. 165] Furthermore, the Court emphasized that Tong’s actions constituted serious violence against persons and/or dangerous activities jeopardizing public safety or security, aimed at challenging law and order in Hong Kong. The deliberate intimidation tactics employed by Tong, conducted in public, aimed at suppressing dissenting voices within the community and had a profound impact on law-abiding citizens. [para. 167] The intimidation tactics were clearly aligned with the pursuit of a political agenda, seeking to intimidate those who did not support it. [para. 168]

In conclusion, the Court held that Tong’s actions were intended to incite secession, as he understood the slogan’s secessionist meaning and intended to communicate it to others. The Court also emphasized that Tong’s conduct constituted a deliberate challenge against law and order, leading to grave harm to society and intimidation of the public to further his political agenda. The Court convicted Tong on all counts. 

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