HKSAR v. LAI MAN LING AND OTHERS

Press Summary (English)

Press Summary (Chinese)

DCCC 854/2021

[2022] HKDC 981

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 854 OF 2021

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REASONS FOR VERDICT

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1.  At the material times, the General Union of the Hong Kong Speech Therapists [香港言語治療師總工會] (“GUHKST”) was a registered trade union in the Hong Kong Special Administrative Region (“HKSAR” or “Hong Kong”) of the People’s Republic of China (“PRC”), and the 5 defendants herein were the executives of the Executive Council of GUHKST.  They face one charge of conspiracy to print, publish, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap 200 (“the Charge”).  Particulars of the offence are as follows:

“[D1 to D5], between the 4^th day of June, 2020 and the 22^nd day of July, 2021, both dates inclusive, in Hong Kong, conspired together and with WONG Hoi-ching and other persons, to print, publish, distribute, display and/or reproduce seditious publications, namely three books by the name of “羊村守衛者”, “羊村十二勇士” and “羊村清道夫”, having an intention: -

(a) to bring into hatred or contempt or to excite disaffection against the Central Authorities and/or the Government of the Hong Kong Special Administrative Region;

(b) to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong;

(c) to raise discontent or disaffection amongst inhabitants of Hong Kong;

(d) to incite persons to violence; and/or

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

2.  All defendants plead not guilty to the charge.

THE PROSECUTION’S CASE

3.  It is alleged by the prosecution that D1 to D5 among themselves and together with Wong Hoi-ching and other persons had embarked upon an agreement to cause the three picture books particularized in the Charge, ie “羊村守衛者” (“Book 1”), “羊村十二勇士” (“Book 2”) and “羊村清道夫” (“Book 3”), to be printed, published, distributed, displayed and/or reproduced in the name of GUHKST from 4 June 2020 (ie the day when Book 1 was published) until 22 July 2021 when they were arrested, and that these three books had the seditious intention as particularized in the Charge.

THE DEFENCE CASE

4.  All defendants argue that the offence charged is unconstitutional on the ground that it is inconsistent with their freedom of expression, speech and publication, and/or freedom to engage in literary and artistic creation and other cultural activities guaranteed by the Basic Law, and the Hong Kong Bill of Rights Ordinance, Cap 383, and that the offence charged should therefore be struck down outright, or it should be given a remedial interpretation in the way suggested by counsel for some defendants to render it constitutionally compliant.  It is also argued that the Charge should not cover “Central Authorities”, and that the facts proved by the prosecution are insufficient to prove the Charge beyond reasonable doubt against each of the defendants.

THE EVIDENCE

5.  Nearly the whole of the prosecution evidence is admitted by the defendants pursuant to section 65C of the Criminal Procedure Ordinance, Cap 221.  The facts admitted are set out in the Admitted Facts (Exhibit P1), and the various exhibits (ie Exhibits P2 to P144) referred to in the Admitted Facts are produced into evidence with their consent.

6.  A witness statement made by Miss Cheng Kin-yee, a senior manager of the Hong Kong and Shanghai Banking Corporation, is admitted into evidence pursuant to section 65B of the Criminal Procedure Ordinance.  Miss Cheng explains the procedure to follow for a registered trade union to set up a business account with the bank. She is not called upon for cross examination.  Her evidence is not in dispute.

7.  Only one witness has testified in court.  He is DPC12776 (“PW1”).  He gives evidence on his investigation into the contents of the three books particularized in the Charge to establish their correlation with some real persons and some actual events in Hong Kong. He also gives evidence on the status of publication of the three books in social media platforms and the internet, and on the information that he has retrieved from the internet webpage of GUHKST.  He produces the results of his investigation (Exhibits P146 to P150).  He is cross-examined by counsel for some of the defendants with a view to clarifying or correcting some of his evidence.  By and large, his evidence is also not in dispute.

8.  At the close of the prosecution’s case, there is no submission of no case to answer from any of the defendants.  After this court has ruled that each defendant has a case to answer, all of them elect not to give evidence and call no witnesses.  On the other hand, certain facts have been agreed between D4 and the prosecution pursuant to section 65C of the Criminal Procedure Ordinance (Exhibit D4-1), and the exhibits referred to therein are produced with their consent (ie Exhibits D4-2 to D4-27).  The facts so admitted are binding upon the prosecution and D4 only.  However, if any of such admitted facts are beneficial to the defence of any other defendant, these facts will be taken into account by this court for the benefit of this other defendant even though he or she has not adopted these facts formally, but the facts admitted between D4 and the prosecution will not be used in any way to the detriment of these other defendants unless such facts are also proved upon another basis[1].

THE PRIMARY FACTS

9.  At the close of the evidence, counsel for the prosecution and all defendants have made extensive submissions on the law and on the facts of this case.  The legal arguments focus on the constitutionality of the offence charged, whereas the factual arguments focus on the sufficiency of the evidence to prove the guilt of each defendant. From the evidence and the submissions, it is clear that the primary facts of this case are not in dispute.

10.  In its written closing submissions, the prosecution has attached a Chronology of Events (Annex-1) which is prepared partly on the basis of the evidence adduced at this trial, and partly on the basis that the court may take judicial notice of certain events.  The accuracy of the events described in this Chronology is not challenged by any of the defendants, including those events that the prosecution says that this court may take judicial notice of. 

11.  I am satisfied that it is proper to take judicial notice of those events as described in the Chronology, bearing in mind not only that those events are known, but also that similar events had been described by the Court of Final Appeal in Kwok Wing Hang v Chief Executive in Council[2], and by Mr Wang Chen, the Vice Chairman of the Standing Committee of the National People’s Congress, on 22 May 2020 in his Explanation on “The Draft Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security”, which was adopted by the Court of Final Appeal and recited in its judgment in HKSAR v Lai Chee Ying[3].

12.  On the basis of judicial notice and/or the evidence given by PW1, this court finds that the following political and social events had occurred in HKSAR prior to the establishment of GUHKST:

(a) In February 2019, the HKSAR Government proposed the Extradition Bill[4]. A section of the public took to the streets to voice out their opposition.

(b) Since around mid-2019, street protests began to persist with some of them escalating into territorial-wide or large scale unlawful assemblies or riots. Other forms of protests began to take shape such as street propaganda[5], cyber abusing, doxing and consumer boycotting[6], industrial actions and strikes. Some of the protests had escalated to become vandalism[7], vigilantism[8], criminal damage, paralyzing public transports, etc. Parties supporting or believed to be supporting the establishment and persons who were or believed to be mainlanders became targets of attack.

(c) On 12 June 2019, the LegCo was besieged by protesters, pressuring the Government to withdraw the Extradition Bill.

(d) On 15 June 2019, the Chief Executive of HKSAR declared to suspend the Extradition Bill.

(e) On 1 July 2019, a sizable number of the public took to the street to protest against the Extradition Bill, and after which, some of the protesters forcefully entered the LegCo Building.

(f) On 4 September 2019, the Chief Executive of HKSAR declared to withdraw the Extradition Bill.

(g) On 1 October 2019, a riot broke out in Tsuen Wan, during which a rioter was shot in the chest[9].

(h) On 4 October 2019, a riot broke out in Sai Wan Ho, during which a rioter was shot in the thigh[10].

(i) In November 2019, “three suspensions” (“大三罷”, ie stop work, stop classes, and stop markets) were undertaken by some members of the public as a means to pressurize the Government.

13.  As to the establishment of GUHKST and the election of executives into the 1^st Executive Council of GUHKST, the following facts have been proved by the Admitted Facts (Exhibit P1) and the various exhibits produced together with the Admitted Facts:

(a) By an application dated 13 November 2019 (Exhibit P2), GUHKST applied to the Registrar of Trade Unions of the Labour Department for registration as a trade union under the Trade Unions Ordinance, Cap 332.

(b) According to this application (Exhibit P2), GUHKST was established on 13 November 2019, and it had 7 members on that day.

(c) This application (Exhibit P2) was signed by 7 persons who confirmed themselves to be the voting members of GUHKST. These 7 persons included D1 and Miss Wong Hoi-ching, but did not include D2 to D5.

(d) By a Certificate dated 18 November 2019 (Exhibit P3), the Registrar of Trade Unions certified that it had received the application by GUHKST for registration as a trade union.

(e) By a Certificate of Registration of a Trade Union dated 22 November 2019 (Exhibit P4), GUHKST was duly registered as a trade union in Hong Kong.

(f) Since its establishment, GUHKST set up its website in the internet, and accounts in three social media platforms, ie Facebook, Instagram and Telegram, as channels for communication.

(g) By a Notice dated 27 November 2019, the Preparatory Group of GUHKST (香港言語治療師總工會籌備小組) convened the 1^st Extraordinary General Meeting (“EGM”) for the members of GUHKST to be held on 12 December 2019[11]. Two documents were attached to this Notice. Attachment I was the agenda of the 1^st EGM. Attachment II was a 17-page document in Chinese with the title of “香港言語治療師總工會規則” (“The Rules of GUHKST”)[12].

(h) On 12 December 2019, GUHKST held its 1^st EGM. In this meeting, members of GUHKST adopted the Rules of GUHKST[13], and elected D1 to D5 and Miss Wong Hoi-ching to act as the executives of the 1^st Executive Council (第一屆理事會) of GUHKST[14].

(i) On 24 December 2019, the Registrar of Trade Unions received a List of Officials dated 12 December 2019 (Exhibit P5) from GUHKST. According to this List, D1 to D5 and Miss Wong Hoi-ching were elected into the Executive Council of GUHKST on 12 December 2019 for a term of two years, with D1 acting as the Chairperson, D2 and Miss Wong Hoi-ching as the two Vice-chairpersons, D3 as the Secretary, D4 as the Treasurer, and D5 as an Officer.

(j) On 10 January 2020, D1, D3 and D4 attended HSBC to apply for a bank account for GUHKST which required the joint signatures of D1 and D4, or the joint signatures of D3 and D4 to operate. D1, D3, D4 and Miss Wong Hoi-ching each had 25% of the voting rights in relation to the account, while D1 and D4 were the key controllers, direct appointees and contact persons. D1 and D4 were the authorized persons to use the bank cards and operate online banking of the account[15].

(k) On 30 January 2020, D4 entered into a License Agreement with Newswood Ltd to rent Room A2, Flat 1011, Block B, Hung Hom Commercial Centre, Ma Tau Wai Road, Hung Hom (“the Hung Hom office”), which served as the registered office and correspondence address of GUHKST for a term of 6 months commencing on 12 February 2020 [Exhibit P6(a)]. D4 entered into another agreement on 7 August 2020 to rent the same premises for another 6 months commencing from 12 August 2020 [Exhibit P6(b)].

(l) In January 2020, GUHKST engaged the service of a registered accountant to act as the auditor of GUHKST’s account. Two Statements of Accounts dated 29 July 2020 [Exhibit P9(a)] and 12 October 2020 [Exhibit P9(b)] were signed by the accountant, D1 and D4, and submitted to the Labour Department.

(m) Until 22 July 2021 when D1 to D5 were arrested, GUHKST remained in existence, D1 to D5 continued to hold the same respective posts in the Executive Council of GUHKST. GUHKST still used the same Hung Hom office, and used the same bank account.

14.  On the basis of judicial notice and/or the evidence given by PW1, this court finds that the following political and social events had occurred in HKSAR after the establishment of GUHKST:

(a) In late January 2020, Covid-19 broke out in the Mainland and Hong Kong, and then worldwide.

(b) In February 2020, industrial strikes were organized by some members of the public in the hope of pressuring the HKSAR Government to close all borders with the Mainland.

(c) The Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for the Hong Kong Special Administrative Region to Safeguard National Security was adopted at the Third Session of the Thirteenth National People’s Congress on 28 May 2020 leading to the enactment of the National Security Law.

(d) On 30 June 2020, the National Security Law was promulgated in HKSAR.

(e) On 11 and 12 July 2020, the Hong Kong pro-democracy 35+ primaries (which selected pro-democracy candidates to run for the subsequent LegCo election in 2020) were held in Hong Kong.

(f) In August 2020, the media reported that 12 fugitives who had been charged for committing various serious offences in Hong Kong fled from the jurisdiction in a boat and entered the Chinese waters unlawfully. They were intercepted by the PRC authorities and escorted to the Mainland for disposal.

PUBLICATION AND PROMOTION OF THE PICTURE BOOKS

15.  According to the Admitted Facts (Exhibit P1) and the various exhibits referred to therein, the defendants admitted that GUHKST had published and promoted the three books as follows.

“羊村守衛者” (Book 1)

16.  On 4 June 2020, e-edition (電子版) of Book 1 was published on an internet platform “ISSUU” with its link (and list of shops distributing hardcopies for free) posted on GUHKST’s website (Exhibit P13), and its social media accounts in Facebook, Instagram and Telegram.

17.  Hardcopies (實體版) of Book 1 were placed inside shops for collection by the general public free of charge.  GUHKST published the list of shops where hardcopies of Book 1 were available for collection on its website and social media platforms.  The list of shops published in GUHKST’s Instagram account [Exhibit P18(a)] was dated 5 June 2020, and the list of shops published in its Facebook account [Exhibit P18(b)] showed it was last updated on 30 September 2020.

18.  On or before 15 June 2020, D1 and D2 attended an interview by inmediahk.net (香港獨立媒體) to promote Book 1.  An article entitled “羊村團結抵抗灰狼入侵     言語治療師工會出繪本述香港故事     細路都睇得明” was published online by inmediahk.net on 15 June 2020 in relation to this interview [Exhibit P34(a)(ii)].  On 17 June 2020, a note of thanks in relation to this interview by inmediahk.net was posted in the Facebook account of GUHKST [Exhibit P34(a)(i)].

19.  On or before 26 June 2020, D1 and D2 attended an interview by Radio Free Asia (香港自由亞洲電台) to promote Book 1.  An article entitled “言語治療師創「送中」兒童繪本 – 在黑暗時代播下自由種子” in relation to this interview was published online by Radio Free Asia on 26 June 2020 [Exhibit P34b(ii)], which included its video interview with D1 and D2 [Exhibit P34(b)(iii)(V)[16]]. On 26 June 2020, a note of thanks to Radio Free Asia was posted in the Facebook account of GUHKST [Exhibit P34(b)(i)] or [Exhibit D4-15].

20.  On or before 28 June 2020, D1 and D2 attended an interview by Apple Daily (蘋果日報) to promote Book 1.  An article entitled “言語治療師工會播民主種子    狼逼羊反    繪本向兒童說抗爭” in relation to this interview was published online by Apple Daily on 28 June 2020 [Exhibit P34(c)(ii)].  On 28 June 2020, a note of thanks to Apple Daily was posted in GUHKST’s Facebook account [Exhibit P34(c)(i)].

21.  On 28 June 2020, the parent-child reading guide (“親子共讀指引”) of Book 1 was uploaded to the website of GUHKST (Exhibit P30).  According to the facts admitted between the prosecution and D4, the parent-reading guide was also uploaded to GUHKST’s Facebook account (Exhibit D4-16), and Telegram account (Exhibit D4-17) on 28 June 2020.

22.  On 25 July 2020, the video version (影視版) of Book 1 [Exhibit P16(a)] was uploaded to Youtube by Hang Ten Collage (杏壇放送學院)[17].

23.  On or before 30 September 2020, D1 attended an interview by inmediahk.net to explain why GUHKST was set up, and how Book 1 was received by the public and what they planned to do next.  An article entitled “「不為殘酷事實擊退只希望一輩人多點努力」-- 專訪言語治療師總工會主席黎雯齡” relating to this interview was published online by inmediahk.net on 30 September 2020 [Exhibit P34(d)].

“羊村十二勇士” (Book 2)

24.  On 19 December 2020, e-edition of Book 2 (Exhibit P14) was published on an internet platform “ISSUU” with its link (and list of shops distributing hardcopies for free) posted on GUHKST’s website, and its social media accounts in Facebook, Instagram and Telegram.

25.  Hardcopies of Book 2 were placed inside shops for collection by the general public free of charge.  GUHKST published the list of shops where hardcopies of Book 2 were available for collection on its website and social media platforms.  The list of shops published in GUHKST’s Instagram account [Exhibit P18(c)] was dated 19 December 2020, and the list of shops published in its Facebook account [Exhibit P18(d)] showed that it was last updated on 16 January 2021.

26.  On 23 December 2020, Stand News (立場新聞) published online an article entitled “屬於香港人嘅繪本 -- 《羊村守衛者》同《羊村十二勇士》” [Exhibit P34(e)(ii)].  On 24 December 2020, a note of thanks to Stand News was posted in GUHKST’s Facebook for providing it with a platform for promoting Book 1 and Book 2 [Exhibit P34(e)(i)].

27.  On 5 January 2021, the police obtained one hardcopy of Book 1 and one hardcopy of Book 2 (Exhibit P24), both of which were placed on the top of a table near the entrance of a shop which assisted in the distribution of the books.

28.  On 10 January 2021, the video version of Book 2 [Exhibit P17(a)[18]] was uploaded to Youtube by Hang Ten Collage.

29.  On or before 14 January 2021, D1 and D2 attended an interview by inmediahk.net to promote Book 2.  An article entitled “【12港人】工會出版《羊村十二勇士》繪本   「希望十二港人知道仲有人記掛住佢哋」” was published online by inmediahk.net on 14 January 2021 in relation to this interview [Exhibit P34(f)(ii)]. On 15 January 2021, a note of thanks in relation to this interview by inmediahk.net was posted in the Facebook account of GUHKST which expressed its gratitude for having one more opportunity for its executives to explain why the picture books were created [Exhibit P34(f)(i)].

“羊村清道夫” (Book 3)

30.  On 16 March 2021, e-edition of Book 3 (Exhibit P15) was published on an internet platform “ISSUU” with its link (and list of shops distributing hardcopies for free) posted on GUHKST’s website, and its social media accounts in Facebook, Instagram and Telegram.

31.  Hardcopies of Book 3 were placed inside shops for collection by the general public free of charge.  GUHKST published the list of shops where hardcopies of Book 3 were available for collection on its website and social media platforms.  According to the list of shops published on 23 March 2021 in GUHKST’s Facebook account [Exhibit P18(e) or D4-27], as well as in its Instagram account and Telegram account [Exhibit D4-27 according to the facts admitted between the prosecution and D4], hardcopies of Book 3 were available for collection in those shops on the following day, ie 24 March 2021.

32.  On 24 March 2021, D1 and D2 attended a radio interview with an online radio “D100” to promote Book 3.  The interview was video-recorded [Exhibit P34(g)(ii)(V)[19]].

33.  On 24 March 2021, the police obtained from 9 shops a total of 9 hardcopies of Book 3 (ie one copy from each shop) [Exhibits P19 to P23, and P25 to P28].  On 25 March 2021, the police obtained one hardcopy of Book 3 (Exhibit P29) from another shop.  The books were placed either on the cashier counters or on tables close to the entrances of these shops[20]. The representatives of two of these shops pointed out that D2 and Miss Wong Hoi-ching had approached them.  One of the shops was the same shop from which the police obtained a hardcopy of Book 1 and a hardcopy of Book 2 on 5 January 2021 (see paragraph 27 above).

34.  On 20 June 2021, D2 and D4 held the first “Parents-Children Reading Session” (親子讀書會)[21]. According to the promotion records posted in GUHKST’s Facebook and Instagram accounts before the event [Exhibit P31(a)], the activity target was children studying in kindergarten and junior primary school, and the book to be read together by parents and children was Book 1[22]. According to the photographs and note of thanks posted in GUHKST’s Facebook and Instagram accounts after the event [Exhibit P31(b)], children with adults attended the book reading session and the book read together was Book 1[23].

35.  On 1 July 2021, D1 and D2 distributed Book 3 at a street booth in Causeway Bay.  Photographs of the event was posted in the GUHKST’s accounts in Facebook and Instagram (Exhibit P32).

36.  Promotion materials had been posted in the Facebook, Instagram and Telegram accounts of GUHKST for another Parents-Children Reading Session to be held on 25 July 2021 with children studying in kindergarten and junior primary school as the activity target, and Book 1 to be the book to be read (Exhibit P33).  This reading session had not taken place due to the arrest of the defendants.

37.  On 22 July 2021, D1 to D5 were arrested.  Miss Wong Hoi-ching left Hong Kong on 21 July 2021.

38.  The residences of D1 to D5 and the Hung Hom office of GUHKST were searched and various exhibits were seized [see Section H of the Admitted Facts (Exhibit P1) for the details].

39.  Upon search, drafts of another picture book entitled《羊村投票日》(“Book 4”) which pertained to the 35+ Primaries were found respectively in the electronic devices of D1, D4 and D5.

40.  D1 was confirmed to be the administrator of GUHKST’s accounts in Facebook, Instagram and Telegram.

41.  According to the undisputed evidence of PW1, the Facebook, Instagram and Telegram accounts of GUHKST were last updated on 4 July 2021.  His searches conducted on 22 July 2022 on the internet using the titles of Book 1, Book 2 and Book 3 as key words revealed three Youtube links to the video versions of Book 1 [Exhibits P148(1) to (3)], one Youtube link to the video version of Book 2 [Exhibit P148(4)], and two Youtube links to the video version of Book 3 [Exhibits P149(5) & (6)], but the video versions of the books uploaded onto the GUHKST’s website and published by Hang Tan Collage had been removed.

OTHER PUBLICATIONS OF 1^ST EXECUTIVE COUNCIL OF GUHKST

42.  According to the Admitted Facts (Exhibit P1), in or about August 2020, publications of the following titles had been uploaded onto the website of GUHKST:

(a) “The platform booklet of the candidates for election into the 2019 Executive Council of GUHKST[24]” (Exhibit P35C).

(b) “The platform booklet of the 2020 – 2021 Executive Council of GUHKST[25]” (Exhibit P35B), and

(c) “2019 – 2020 Annual Report[26]” (Exhibit P35A).

43.  Between 2020 and 2021, 5 newsletters of GUHKST had been uploaded to the website of GUHKST.  They were Newsletter Nos. 1 to 5, for the respective periods of November 2019 to February 2020 [Exhibit P36(a)], February 2019 to May 2020[27] [Exhibit P36(b)], May 2020 to August 2020 [Exhibit P36(c)], August 2020 to November 2020 [Exhibit P36(d)], and November 2020 to February 2021 [Exhibit P36(e)].  The defendants admitted that Newsletters Nos. 3 and 5 had announced news concerning publications of the picture books. 

SEARCH INSIDE THE HUNG HOM OFFICE OF GUHKST

44.  A search was conducted by the police inside the Hung Hom office of GUHKST in the presence of D1 after her arrest on 22 July 2021.  The exhibits seized are listed out in paragraph 31 of the Admitted Facts (Exhibit P1), including but not limited to the following:

(a) 63 hardcopies of Book 1 (Exhibit P124),

(b) 179 hardcopies of Book 2 (Exhibit P125),

(c) one hardcopy of Book 2 in A4 size (Exhibit P126),

(d) 178 hardcopies of Book 3 (Exhibit P127), and

(e) 18 pieces of toy figures in usual protester’s gear and with the words “GUHKST” (Exhibit P128).

45.  All defendants have a clear criminal record.  I remind myself of the good character direction both in terms of propensity and credibility in favour of each of the defendants.

46.  D1 and D2 were charged on 23 July 2021.  D3 to D5 were charged on 30 August 2021.

FACTS ADMITTED BETWEEN THE PROSECUTION AND D4

47.  These facts are set out in D4’s Admitted Facts (Exhibit D4-1) and the attached exhibits (Exhibits D4-2 to D4-27).  It is not necessary to recite them in detail. Suffice to say that these admitted facts have proven that GUHKST had undertaken a range of activities in the capacity of a registered trade union in Hong Kong both internally with its members and externally with other organizations apart from publishing Books 1 to 3.

SECTIONS 9 AND 10(1)(C) OF THE CRIMES ORDINANCE

48.  In simple terms, the prosecution alleges that the defendants had conspired together and with Wong Hoi-ching and other persons to commit an offence contrary to section 10(1)(c) of the Crimes Ordinance.

49.  Section 10(1) of the Crimes Ordinance has created 4 different offences under each of its 4 subsections.  This case concerns only with section 10(1)(c), which stipulates that any person who prints, publishes, sells, offers for sale, distributes, displays or reproduces any seditious publication shall be guilty of an offence.  The maximum penalty stipulated is a fine of HK$5,000 and imprisonment for 2 years for a first offence, and 3 years’ imprisonment for a subsequent offence.

50.  According to section 10(5) of the Crimes Ordinance, “seditious publication” means a publication having a seditious intention.

51.  “Seditious intention” is defined in section 9 of the Crimes Ordinance.  Section 9 in its current statutory form is as follows:

“9. Seditious intention

(1) A seditious intention is an intention—

(a) to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, or Her Heirs or Successors, or against the Government of Hong Kong, or the government of any other part of Her Majesty’s dominions or of any territory under Her Majesty’s protection as by law established; or (Replaced 28 of 1938 s. 2)

(b) to excite Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established; or

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong; or

(d) to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Hong Kong; or

(e) to promote feelings of ill-will and enmity between different classes of the population of Hong Kong; or

(f) to incite persons to violence; or (Added 30 of 1970 s. 2)

(g) to counsel disobedience to law or to any lawful order. (Added 30 of 1970 s. 2)

(2) An act, speech or publication is not seditious by reason only that it intends— (Amended 28 of 1938 s. 2)

(a) to show that Her Majesty has been misled or mistaken in any of Her measures; or

(b) to point out errors or defects in the government or constitution of Hong Kong as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

(c) to persuade Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in Hong Kong as by law established; or

(d) to point out, with a view to their removal, any matters which are producing or have a tendency to produce feelings of ill-will and enmity between different classes of the population of Hong Kong. (Amended 28 of 1938 s. 2)

(3) (Repealed 74 of 1992 s. 2)

ISSUES

52.  From the submissions of the parties, I find that the following issues fall for consideration: -

(a) Does the offence charged cover the “Central Authorities”?

(b) What are the elements of the offence, in particular whether it requires proof of “the common law intention”?

(c) Is the offence charged unconstitutional?

(d) Were the three picture books or any of them seditious publication?

(e) Was there the alleged conspiracy, and if so, did D1 to D5 or any of them take part in it?

(f) Is prosecution of the offence time-barred?

Whether the offence charged cover “Central Authorities”

53.  It is clear that the term “Central Authorities” does not appear in the written provisions of section 9 of the Crimes Ordinance as they are now in the statute book, but the term “Her Majesty” with other terms and expressions associated with that concept are still there.  Section 9 was of course enacted at the time when Hong Kong was under the colonial rule, but section 9 in its written form has not been amended despite the PRC has already resumed exercising sovereignty over Hong Kong. 

54.  The Crimes Ordinance, including its sections 9 and 10, were part of the “laws previously in force in Hong Kong” before the Handover.  It is adopted as laws of the HKSAR pursuant to Article 160 of the Basic Law (“BL”) and section 2A of the Interpretation and General Clauses Ordinance, Cap 1 (“IGCO”).  To facilitate the modification and the adaptations of the previous laws so as to bring them into conformity with the status of Hong Kong as a Special Administrative Region of PRC, section 1 of Schedule 8 to the IGCO provides that:

“Any reference in any provision to Her Majesty, the Crown, the British Government or the Secretary of State (or to similar names, terms or expressions) where the content of the provision—

(a) relates to title to land in the Hong Kong Special Administrative Region;

(b) involves affairs for which the Central People’s Government of the People’s Republic of China has responsibility;

(c) involves the relationship between the Central Authorities and the Hong Kong Special Administrative Region,

shall be construed as a reference to the Central People’s Government or other competent authorities of the People’s Republic of China.”

55.  Section 2 of Schedule 8 to the IGCO further provides that:

“Any reference in any provision to Her Majesty, the Crown, the British Government or the Secretary of State (or to similar names, terms or expressions) in contexts other than those specified in section 1 shall be construed as a reference to the Government of the Hong Kong Special Administrative Region.”

56.  As to the meaning of “Central Authorities”, section 3 of IGCO when defining “State (國家)” provides that “State” includes “the Central Authorities of the People’s Republic of China that exercise functions for which the Central People’s Government has responsibility under the Basic Law”.  It is therefore clear that the functions that fall within the responsibility of the Central People’s Government under the BL are to be exercised by the Central Authorities.  In other words, the responsibility of the Central People’s Government under the BL can be regarded as the responsibility of the Central Authorities.

57.  On the basis of these statutory provisions, counsel for D4 submits that the reference to “Her Majesty” in section 9 of the Crimes Ordinance cannot be construed as a reference to the “Central Authorities” pursuant to section 1 of Schedule 8 to the IGCO.  His argument runs as follows.  First, section 1(a) of the IGCO is irrelevant because this case is not related to title to land in HKSAR.  Second, while the Central People’s Government or the Central Authorities are responsible under the BL for the foreign affairs relating to the HKSAR (Article 13), the defence of the HKSAR (Article 14), the addition or deletion of laws relating to the defence and foreign affairs and matters outside the autonomy of the HKSAR from Annex III to the BL [Article 18(3)], as well as the declaration of a state of emergency here [Article 18(4)], none of these affairs are referred to in section 9 of the Crimes Ordinance.  Lastly, section 1(c) is not applicable because section 9 of the Crimes Ordinance does not concern with the relationship between the Central Authorities and HKSAR.  Hence, counsel for D4 submits that any reference to “Her Majesty” in section 9 of the Crimes Ordinance should be construed as a reference to the Government of HKSAR according to section 2 (instead of section 1) of Schedule 8 to the IGCO. 

58.  Counsel for D4 further asks this court to distinguish between power and responsibility.  He submits that it is the Government of HKSAR which has the responsibility to defend national security in the Region, whereas the Central People’s Government only has the power to oversee that this is done.  He refers to Article 23 of the BL which stipulates that the HKSAR shall enact laws “on its own” to prohibit any act of treason, secession, sedition, subversion against the Central People’s Government, and against various other kinds of national security offences.  He also refers to the two Explanations[28] given by the Standing Committee of the National People’s Congress when the National Security Law (“NSL”)[29] was going through its legislative process in the NPC, in which it was said that the HKSAR has a “constitutional responsibility” to safeguard national security in Hong Kong.  He refers to Articles 7 to 11 of the NSL which stipulate the duties that HKSAR has to discharge in safeguarding national security, and refers to Articles 12, 16 and 18 which stipulate that certain specific government bodies have to be set up in HKSAR to perform the designated functions to safeguard national security.  In summary, counsel for D4 submits that it is the Government of HKSAR which has the responsibility as prescribed by the BL to defend Hong Kong rather than the Central People’s Government, and that the responsibility lies solely upon the Government of HKSAR under the BL.  In addition, counsel for D4 submits that at time when section 9 of the Crimes Ordinance was enacted, it could not be related to the foreign affairs or the defence of Hong Kong.  Hence, the two criteria that have to be satisfied before section 1(b) of Schedule 8 to the IGCO can be invoked have not been satisfied, and any reference to “Her Majesty” in section 9 of the Crimes Ordinance can only be construed in accordance with section 2 of Schedule 8 to the IGCO, which means that any reference to “Her Majesty” in section 9 of the Crimes Ordinance can only be construed as a reference to the Government of the HKSAR rather than the Central People’s Government or the Central Authorities.  Counsel for D3 also put forward similar submissions.

59.  In my judgment, counsel’s submissions do not sit well with Article 14 of the BL.  Article 14(1) provides that “the Central People’s Government shall be responsible for the defence of the Hong Kong Special Administrative Region”, whereas Article 14(2) provides that “the Government of the Hong Kong Special Administrative Region shall be responsible for maintenance of public order in the Region”.  Since the Government of HKSAR will take care of public order in the Region under Article 14(2), what is left to be defended by the Central People’s Government under Article 14(1) can only be the defence of the HKSAR against any national security risk.

60.  Furthermore, it is important to bear in mind that the HKSAR is an inalienable part of PRC under Article 1 of the BL.  Since HKSAR is part and parcel of the PRC, it follows that safeguarding national security in HKSAR must be a component of the overall national security framework of the PRC, which must be a matter outside the limits of the HKSAR’s autonomy but within the purview of the Central Authorities.  In other words, there is nothing called defending against national security risk of Hong Kong, but defending against national security risk in HKSAR.  It has also been stated unequivocally in Article 3 of the NSL that the Central People’s Government has an overarching responsibility for national security affairs relating to the HKSAR.  The fact that the HKSAR is under a constitutional responsibility to safeguard national security in the Region is not inconsistent with the Central People’s Government having the responsibility for safeguarding national security in HKSAR under the BL.  On the contrary, it is only logical that the local government is under a constitutional duty to help the Central People’s Government in this regard.  In my judgment, the Central People’s Government is responsible for the defence of HKSAR as prescribed by Article 14(1) of the BL.

61.  As to whether the contents of section 9 of the Crimes Ordinance involve affairs for which the Central People’s Government has responsibility, the answer must be yes. Although section 9 does not say expressly that it was enacted for the defence of Hong Kong, it was clear from the provisions of section 9 that it was enacted to protect “the person of Her Majesty, or Her Heirs or Successors”, which must mean that section 9 was enacted to protect not only the Monarch of the British Empire but also her Monarchy.  It was inconceivable that section 9 would not be used by the British ruler for the defence of her colony in Hong Kong if a sedition offence occurred here against her, her government or the local colonial government. Hence, it is incorrect to say that section 9 of the Crimes Ordinance was not related to the defence of Hong Kong.  In addition, the Court of Final Appeal has already ruled definitively in HKSAR v Ng Hau Yi[30] that a prohibited act of sedition, including an offence contrary to section 10(1)(c) of the Crimes Ordinance, qualified as an offence endangering national security.  In other words, the sedition offence created by sections 9 and 10 of the Crimes Ordinance must be one of the legislations to be used for the defence of HKSAR against offences endangering national security, which is one of the affairs for which the Central People’s Government has responsibility under the BL.

62.  For these reasons, I am of the view that the criteria for triggering section 1(b) of Schedule 8 to the IGCO are satisfied, and that any reference to “Her Majesty” in section 9 of the Crimes Ordinance shall be construed as a reference to “the Central People’s Government or other competent authorities of the People’s Republic of China”.

63.  Of course, the issue here is whether the Charge should cover the “Central Authorities” rather than the “Central People’s Government”.  But since the Central Authorities exercise functions for which the Central People’s Government has responsibility under the BL, it will be proper to construe any reference to “Her Majesty” in section 9 of the Crimes Ordinance to be a reference to “the Central Authorities”, since “the Central Authorities” must fall within the limb of “other competent authorities of the People’s Republic of China” stated in section 1 of Schedule 8 to the IGCO.

64.  Further or alternatively, reference can be made to the BL 160 Decision[31], which seeks to implement Article 160 of the BL to enable the laws in force in Hong Kong before 1 July 1997 to remain applicable after that date in HKSAR.  By Articles 4 and 5 of this Decision, it is stipulated that the laws previously in force shall be adopted with such modifications, adaptations, restrictions and exceptions as may be necessary in accordance with the substitution rules stated in Annex III of that Decision.  Paragraph 1 of that Annex states inter alia that in any provision that involves the affairs within the responsibilities of the Central Authorities (and the Central People’s Government is not mentioned there) as prescribed by the BL, any reference in these provisions to “Her Majesty”, etc should be construed as a reference to “the Central Authorities”.  Since Schedule 8 to the IGCO was enacted to give effect to the BL 160 Decision, it must follow that the construction rules in Schedule 8 to the IGCO should operate in the same way as the substitution rules in Annex III of the BL 160 Decision.  On this basis, reliance can be placed on section 22 of Schedule 8 to the IGCO, which provides that this Schedule applies unless the context otherwise requires, to construe any reference to “Her Majesty” in section 9 of the Crimes Ordinance to be a reference to “the Central Authorities”.

65.  Another argument put forward by counsel for D4 is that the criminalization of sedition and its reach should be the concern of the Government of HKSAR because Article 23 of the BL has stipulated that HKSAR shall enact laws “on its own” to prohibit amongst others any act of sedition.  On this basis, it is submitted that the matters referred to in section 9 of the Crimes Ordinance cannot be within the responsibility of the Central People’s Government.  This submission is rejected.  No offence of sedition has been enacted.  What happens here is simply that the laws previously in force in Hong Kong before the Handover have been construed in this manner according to Schedule 8 to the IGCO.

66.  Counsel for D4 also argues that if the Central People’s Government has responsibility under section 9 of the Crimes Ordinance, it would mean that everything done in relation to it, including prosecution of the relevant offence, would also be the responsibility of the Central People’s Government.  The submission is also rejected. Article 14(1) only says that the Central People’s Government is responsible for the defence of HKSAR.  Prosecution of offences in HKSAR is not covered.

67.  For these reasons, I rule that the Central Authorities have been properly included in the Charge against the defendants.

68.  The prosecution has submitted that the same ruling can be reached on the basis that the contents of section 9 of the Crimes Ordinance also involve the relationship between the Central Authorities and HKSAR, hence, section 1(c) of Schedule 8 to the IGCO also applies.  In light of my ruling, it is not necessary to say anything further.

69.  The prosecution further submits that, in the context of section 9(1)(a) of the Crimes Ordinance, “the Central Authorities” have to be considered to be “the body of central power under the constitutional order established by the Constitution of the People’s Republic of China”[32] under the leadership of the Communist Party, which, by reference to Chapter III “State Institutions” of the Constitution of the PRC, includes but is not limited to the National People’s Congress, the National People’s Congress Standing Committee, the President of the PRC, the State Council, the Central Military Commission.  The reasons are set out in Part F.2 of its written submissions on the Interpretation and Human Rights issues.  There are no submissions to the contrary.  I accept the submissions of the prosecution.

70.  According to the construction stated above, section 9(1)(a) of the Crimes Ordinance shall now read: “A seditious intention is an intention to bring into hatred or contempt or to excite disaffection against the Central Authorities, or against the Government of Hong Kong”.  The other parts of the written section 9(1)(a) are to be disregarded as the types of colonial governments referred to therein do not exist now.  References to “Her Majesty’s subjects” in sections 9(1)(b), 9(1)(d) and 9(2)(c) shall also be disregarded, but the other parts of each subsection shall remain.  Hence, sections 9(1)(c), 9(1)(f) and 9(1)(g) shall remain unchanged, but section 9(1)(d) shall read: “A seditious intention is an intention to raise discontent or disaffection amongst inhabitants of Hong Kong.” 

71.  Likewise, section 9(2)(a) shall read: “An act, speech, or publication is not seditious by reason only that it intends to show that the Central Authorities or the Government of HKSAR has been misled or mistaken in any of their measures”.  It is not necessary to change sections 9(2)(b) and 9(2)(d).  For section 9(2)(c), the only change is to ignore the reference to “Her Majesty’s subjects”, leaving behind “to persuade inhabitants of HKSAR to attempt to procure any lawful means the alteration of any matter in HKSAR as by law established”. 

72.  The particulars of the Charge against the defendants are drafted according to these terms.

Elements of the offence charged

73.  In my judgment, from the plain reading of the statutory provision in question, a person will not commit an offence contrary to section 10(1)(c) of the Crimes Ordinance unless:

(a) he prints, publishes, sells, offers for sale, distributes, displays or reproduces any publication (“the prescribed act”);

(b) the publication is having a seditious intention; and

(c) at the time when he performs the prescribed act,

(i) he intends to perform the prescribed act,

(ii) he knows that the publication is having a

seditious intention, and

(iii) he has a seditious intention.

74.  There is no dispute between the parties that a defendant must intend to perform the prescribed act, and know that the publication is a seditious publication before he can be convicted of the offence.  The only dispute is whether he must also have the seditious intention himself.  The prosecution submits that while the publication must have a seditious intention, the defendant need not.  Counsel for D2 submits that evidence of D2’s intention is neither a necessary nor a sufficient condition for proof of guilt.  In my judgment, it is necessary to prove that the defendant also has a seditious intention for the following reasons.

75.  First, where a statute laying down a criminal offence is silent on the relevant mental element, the starting point in interpreting the statute is that there is a common law presumption of mens rea, that this presumption is a strong one, and that it will only be rebutted by express words or by necessary implication.  The prosecution has not demonstrated why this presumption of mens rea has been rebutted.

76.  Second, at the time when the Sedition Ordinance 1970 was incorporated into the Crimes Ordinance, in addition to the present sections 9(1) and 9(2), there was a section 9(3) which provided that:

“In determining whether the intention with which any act was done, any words were spoken, or any document was published, was or was not seditious, every person shall be deemed to intend the consequences which would naturally follow from his conduct at the time and under the circumstances in which he so conducted himself.”

This deeming provision was clearly a kind of presumption assisting the prosecution to prove that the defendant had the requisite intention to do the act, utter the words, or publish the document. This section 9(3) was however repealed on 17 July 1992 by the Crimes (Amendment) (No. 2) Ordinance 1992 because it was considered to be inconsistent with the presumption of innocence provided by Article 11 of the Hong Kong Bill of Rights (“HKBOR”) and the spirit of section 65A of the Criminal Procedure Ordinance. The relevant official record of proceedings clearly showed that section 9(3) was repealed not because the Legislature considered that the prosecution had to prove the defendant’s intention unaided by any presumption.

77.  Third, in Fei Yi Ming & Lee Tsung Ying v R[33], when dealing with one of the grounds of appeal in connection with section 3(2) of the Sedition Ordinance which was the same as section 9(3) of the Crimes Ordinance before it was repealed, the then Chief Justice recited in the judgment, at page 157, the following direction given by the trial judge to the jury:

“You have been invited to look at the other articles in evidence. They are for your consideration in assisting you to throw light on the state of the publisher’s mind when he published the article of the 5^th of March in the Ta Kung Pao, and articles published before and after the 5^th of March are there in evidence before you – their weight, their value is entirely a matter for you.” (Italics for emphasis)

It is therefore clear from this direction to jury that the defendant must have a seditious intention as an element of the offence.

78.  Having said that, I am also of the opinion that, if the publication has a seditious intention involving more than one limb of section 9(1) of the Crimes Ordinance, it is not necessary for the defendant to have a seditious intention mirroring exactly in every respect with the publication so long as he shares some of the seditious intention of the publication.

“Seditious intention” – the burden of proof

79.  Section 9(1) of the Crimes Ordinance has stipulated that a seditious intention is an intention under one of the 7 limbs listed in sub-subsections (a) to (g).  On the other hand, section 9(2) provides that any act, speech or publication is not seditious by reason only that it intends to achieve one of the purposes as stated in subsections (a) to (d). 

80.  In my judgment, section 9(2) of the Crimes Ordinance does not place any kind of burden of proof on the defendant.  As a seditious intention is the fundamental core element of each of the seditious offences, the burden must be on the prosecution to prove this element of the offence, which will necessitate the prosecution to prove not only that the defendant has a seditious intention within one or more of the limbs stated in section 9(1)(a) to (g) of the Crimes Ordinance, but also that his act, speech or publication is not within any limb stated in section 9(2)(a) to (d).   An authority supporting this approach is the case of Tong Yiu Wah v HKSAR[34] although that case was not a sedition case.

“The Common Law Intention”

81.  It is argued strongly by counsel for all defendants that, in addition to an intention within one or more of the 7 limbs stated in section 9(1) of the Crimes Ordinance, a seditious intention must also include “an intention to incite persons to violence or to create public disturbance or disorder for the purpose of disturbing constituted authority” formulated by case law in various common law jurisdiction (“the Common Law Intention”).  In my judgment, there is no legal basis to incorporate the Common Law Intention into the statutory definition of “seditious intention” stipulated in section 9 of the Crimes Ordinance.

82.  First, while the offence of sedition has its origin in the common law, sedition has been a statutory offence in Hong Kong since 1914 when the Seditious Publications Ordinance was enacted.  There have been various legislative amendments thereafter, and the law now is that stated in sections 9 and 10 of the Crimes Ordinance. The meaning of “seditious intention” in Hong Kong is therefore defined by statute, including what is and what is not “seditious intention” according to the definition stipulated in the two subsections of section 9.  Hence, it is the statutory meaning of “seditious intention” that matters.

83.  Second, when moving the Sedition (Amendment) Bill 1970 to include an intention to incite other persons to violence, or to counsel disobedience to law or to any lawful order [which later became the present sections 9(1)(f) and 9(1)(g)] as another two limbs of seditious intention in the Sedition Ordinance, the then Attorney General said it was likely that, for a seditious intention in the other forms [which were equivalent to the present section 9(1)(a) to (e)], there would usually be an incitement to violence or to disobedience of the law.  By using the words “likely” and “usually”, it shows that the Common Law Intention (which required an intention to incite other persons to violence) was not a necessary element of the seditious offences in Hong Kong.  Likewise, the colonial government in Hong Kong pushed through the Crimes (Amendment) (No. 2) Bill on 24 June 1997 to add the words “with the intention of causing violence or creating public disorder or a public disturbance” into section 10(1) of the Crimes Ordinance.  If seditious intention in section 9 had already included the Common Law Intention, there was clearly no need to push through this amendment.

84.  Third, in Fei Yi Ming, it was held on appeal by the Full Court that incitement to violence was not a necessary element to be proved by the prosecution.  This authority is binding on this court under the doctrine of stare decisis. 

85.  Fourth, defence counsel have cited many cases on the Common Law Intention, but the introduction of the Common Law Intention as a requirement constituting a seditious intention seemed to stem from the need perceived by the judges to limit the scope of the sedition offence so that it was only when the words uttered had created a real risk to upset the political and social order before the criminal law would step in to intervene. In those days, such real risk might be created only when violence or threat of violence was used.  The situation has changed nowadays.  Violence is not the only means to bring down a government or cripple its running.  Spreading rumour, hatred and disinformation is clearly a readily available and may even be a more effective weapon without the need to incite people to violence.  Since the common law is always developing, there is no reason now to stick to the Common Law Intention formulated decades ago to make incitement to violence a prerequisite component of a seditious intention.

86.  Fifth, Article 20 of the NSL has made it clear that the offence of secession can be committed whether or not force or threat of force is used.  Since the offence of sedition usually occurs as a prelude to secession, incorporating the Common Law Intention into the definition of seditious intention in the Crimes Ordinance does not conform with the intention that the NSL and the laws of HKSAR including sedition should work as a coherent whole to safeguard national security in the Region.

87.  For these reasons, I hold that seditious intention as defined in section 9 of the Crimes Ordinance has never included the Common Law Intention as its necessary ingredient, and that there is no basis today to interpret seditious intention to include the Common Law Intention. 

Constitutional challenge to the offence charged

88.  This prosecution is based on what the defendants had allegedly said and published.  It raises the question whether the offence charged has infringed upon their rights to freedoms of expression, of speech, of publication, and of literary and artistic creation and other cultural activities.  It is accepted by all parties that these freedoms are fundamental rights guaranteed and protected by Articles 27 and 34 of the BL, Article 19 of the International Covenant on Civil and Political Right (“ICCPR”) which is implemented by Article 39 of the BL, as well as Article 16 of the HKBOR. 

89.  Likewise, it is accepted that these are not absolute rights and may be subject to restrictions. However, such restrictions must be “prescribed by law” and must not contravene the provisions of ICCPR (Article 39(2) of the BL).

90.  Article 19 of the ICCPR and Article 16 of HKBOR are in exactly the same terms.  They provide the following:

“(1) Everyone shall have the right to hold opinions without interference.

(2) Everyone shall have the right to freedom of expression; this right shall include freedom to seek, receive and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing or in print, in the form of art, or through any other media of his choice.

(3) The exercise of the rights provided for in paragraph (2) of this article carries with it special duties and responsibilities. It may therefore be subject to certain restrictions, but these shall only be such as are provided by law and are necessary -

(a) for respect of the rights or reputations of others; or

(b) for the protection of national security or of public order (ordre public), or of public health or morals.”

91.  At the outset, I accept that this court is under a duty to consider and determine constitutionality of the offence charged.  In discharging this duty, I bear in mind that the court must give a generous interpretation to the fundamental rights guaranteed by the constitution, and that any restriction must be narrowly interpreted: HKSAR v Ng Kung Siu[35]. In the context of this particular case, it is particularly important to remember that: -

“This freedom [of expression] includes the freedom to express ideas which the majority may find disagreeable or offensive and the freedom to criticize governmental institutions and the conduct of public officials.”

92.  The first issue is whether the restriction, ie section 10(1)(c) of the Crimes Ordinance satisfies the “prescribed by law” requirement stipulated in Article 39(2) of the BL.  The central requirement is that the offence must have a sufficiently clearly formulated core to enable a person, with advice if necessary, to regulate his conduct so as to avoid liability for that offence. At the same time, the principles recognize the need for both flexibility and development: Winnie Lo v HKSAR[36], and since a fundamental freedom of speech is involved, there must be an exceptionally high degree of certainty: Shum Kwok Sher v HKSAR[37].

93.  It is the defence submission that the offence requires proof of a seditious intention, but the words “hatred” (憎恨), “contempt” (藐視), “disaffection” (離叛), and “discontent” (不滿) in section 9 are too vague, imprecise and subjective so that an ordinary person will not be able to regulate his conduct to avoid criminal liability, and the fear of stepping onto the wrong side of the law will produce a chilling effect in derogation of the right to freedom of expression.  For these reasons, it is submitted that section 10(1)(c) fails to satisfy the “prescribed by law” requirement.

94.  In my view, “hatred”, “contempt”, “disaffection”, and “discontent” both in English and Chinese are just words with ordinary meaning, and these concepts are best left to the trial judge or jury to be applied in their ordinary meaning to the time, place and circumstances of the conduct in question.  Besides, while these words are descriptive of a person’s subjective feelings or emotions, ordinary people in their daily lives must have personally experienced this kind of subjective feelings or emotions, and noticed other persons behave in that mental state.  From these experiences and observations, it is clear that while the feelings or emotions are subjective, some objective facts will have to exist first in order to bring about that kind of subjective feelings or emotions.  For instance, we hate a classmate because he has been bullying us for a long time; we look down on another person with contempt because he behaves in an immoral manner; we have no affection towards a leader who does not take care of our interest; and we feel discontented when we do not get what we deserve.  From daily living experience, a judge or a jury is in a position to decide whether the acts done or the words uttered (which are proved by objective evidence) will lead to the kind of subjective feelings or emotions referred to in section 9(1).  Hence, despite the end result being related to the subjective feelings or emotions of the targeted person of the seditious act or words, there are objective facts assisting a judge or a jury to make a determination whether the kind of subjective feelings or emotions have been produced, and whether acts were done or words were uttered with the intention to produce those subjective feelings or emotions.  Likewise, anyone doing or intending to do the act or uttering the words may rely on his own experience, and if necessary obtain advice, to decide whether or not his act or words will be regarded as having a seditious intention.  Hence, there is still a sufficiently clearly formulated core to determine whether or not his act or words may attract criminal liability.  In the context of section 9(1) of the Crimes Ordinance, the acts or words that are prohibited are those acts or words that have the effect of demeaning the Central Authorities and/or the Government of HKSAR in the eyes of the general public, and/or estranging the relationship between these institutions and the people here, thereby damaging the legitimacy of the authorities and their relationship with the people, which in turn will or may endanger the political order and social tranquility of the nation.  While it is not possible to list out each and every prohibited act, there is a “sufficiently clearly formulated core” to enable a person, with advice if necessary, to regulate his conduct so as to avoid criminal liability.

95.  Furthermore, a seditious intention does not depend on the subjective feeling of the target institutions or persons, but depends on the subjective intention of the person uttering the words or printing the publication.  He knows his intention of the words he used or the publication he printed.  He can certainly refer to section 9(2) of the Crimes Ordinance to find out if his words or publications will or will not be regarded as seditious.  For instance, if he is just criticizing the Central Authorities or the Government of HKSAR has been misled or mistaken in any of their measures, it will not even be necessary for him to worry about what “hatred”, “contempt”, “disaffection” or “discontent” in the context of section 9(1) may mean because his speech or publication will not be regarded as seditious in any event.  In other words, it is only when he cannot rely on any of the 4 limbs in section 9(2), then it gives him a warning that he has to consider carefully whether what he is going to do or say may be prohibited by sections 9 and 10 of the Crimes Ordinance, and he may seek legal advice if necessary. From this perspective, section 9(2) has also assisted in delineating the area of risk, and this is sufficient to satisfy the requirement of certainty.

96.  For these reasons, I am satisfied that despite the use of words like “hatred”, “contempt”, “disaffection”, and “discontent” in section 9 of the Crimes Ordinance, these concepts are not so vague or imprecise, and I am of the view that the degree of legal certainty satisfies the “prescribed by law” requirement stipulated in Article 19 of the ICCPR and Article 16 of HKBOR.

97.  The next step is to consider whether the restriction or limitation is a proportionate measure.  It is common ground that when the court considers whether a restriction imposed on a constitutionally guaranteed right is valid, it should go through the 4-step analysis as set out in Hysan Development Co Ltd v Town Planning Board[38]:

(a) The restriction or limitation must pursue a legitimate aim;

(b) The restriction or limitation must be rationally connected to that legitimate aim;

(c) The restriction or limitation must be no more than necessary to accomplice that legitimate aim;

(d) A reasonable balance must be struck between the societal benefits and the inroads made into the constitutionally protected rights of the individual, asking in particular whether the pursuit of the societal interest resulted in an unacceptably harsh burden on the individual.

98.  On Step 1: criminalization of seditious acts clearly pursues a legitimate aim.  The nature of the offence of sedition as described in R v Sullivan and Pigott [39] shows why criminalizing sedition is necessary. Fitzgerald J. said:

“Sedition is a crime against society, nearly allied to that of treason, and it frequently precedes treason by a short interval. Sedition in itself is a comprehensive term, and it embraces all those practices, whether by word, deed or in writing, which are calculated to disturb the tranquility of the State, and lead ignorant persons to endeavor to subvert the Government and the laws of the empire. The objects of sedition are generally to induce discontent and insurrection and stir up opposition to the Government, and bring the administration of justice into contempt; and the very tendency of sedition is to incite the people to insurrection and rebellion. Sedition has been described as disloyalty in action, and the law considers as sedition all those practices which have for their object to excite discontent or dissatisfaction, to create public disturbance, or to lead to civil war; to bring into hatred or contempt the Sovereign or the Government, the laws or constitution of the realm, and generally all endeavours to promote public disorder …”

99.  Step 2: It is also beyond argument that criminalization of seditious acts by sections 9 and 10 of the Crimes Ordinance is rationally connected with that legitimate aim. 

100.  The real arguments turn on Step 3, ie whether the restriction or limitation is no more than necessary to accomplice that legitimate aim.  It is clear that the only possible ground justifying the restriction or limitation are national security and public order (ordre public) as stated in Article 19 of the ICCPR and Article 16 of HKBOR.

101.  The dispute is to what extent restrictions can be imposed on the right to free speech in the name of national security.  It is submitted that the concept of national security should be construed according to the Siracusa Principles on the Limitations and Derogation Provisions in the ICCPR so that the right to freedoms of expression, publication and literary and artistic creation will not be unduly restricted. According to the Siracusa Principles, a legitimate national security interest is one that aims “to protect the existence of the nation or its territorial integrity or political independence against force or threat of force.

102.  The Siracusa Principles do not enjoy the status of rules of law in HKSAR.  They were issued 38 years ago and likely to be outdated.  Nowadays, the existence of a nation, its territorial integrity or political independence can be threatened not just by force or threat of force, but by propaganda spreading rumours, misinformation and disinformation that make the people no longer trust and even hate their government, resulting in serious social unrest and chaos.  In this sense, making sedition an offence should be even a more important tool for protection of national security rather than holding it unconstitutional.  In addition, its scope should not be unduly restricted, or else it will be ineffective in protecting national security.  The issue is how to strike a balance.  It must also be borne in mind that vague and arbitrary limitations on the right to freedoms of expression and publication cannot be accepted. 

103.  On this issue, I am of the view that the overseas statutes, case law, law commission working paper, academic commentaries are of little assistance.  Their political background, social condition, culture and the availability of alternative legislations to deal with seditious situations to safeguard their national security are different to those in HKSAR.  Hence, our focus should be on the unique political and social conditions of the Region, and the other laws in force in HKSAR.

104.  In considering whether the offences created by sections 9 and 10 of the Crimes Ordinance are no more than necessary to accomplice the legitimate aim, it is important to understand the political and social condition in HKSAR at the time of the alleged offence against the defendants up till now: see paragraph 12 above.  Since the start of the Anti-Extradition Movement in mid-2019, HKSAR went through a lengthy period of mass riots and civil unrests, some of them were extremely violent and weapons and petrol bombs were used.  While the exact number of people participated in these riotous activities will never be known, it can be said with certainty that there were over tens of thousands of them.  What these people had demonstrated during this period of time was that they did not recognize the sovereignty of the People’s Republic of China over HKSAR, and they did not support the policy of the “One Country, Two systems”.  There were calls for Hong Kong independence or self-determination.  Although the situation in HKSAR has more or less calmed down after the promulgation of the NSL, it is clear that these people have little change in their attitude.  They just go underground and the seeds of unrest are still there.  The political situation appears to be calm on the surface but very volatile underneath. 

105.  Under these circumstances, there is a strong pressing need to safeguard national security in HKSAR to prevent riots and civil unrests of any magnitude from happening again.  It is also essential to protect the constitutional order of HKSAR under the “One Country, Two Systems” policy and to restore national unity as soon and as fullest as possible.  It is also of fundamental importance that Hong Kong residents can have a prolonged period of living in peaceful environments after public tranquility had been destroyed or damaged for one year.  It is therefore important to adopt measures to protect the general welfare and the interest of the collectivity as a whole under the concept of public order (ordre public). For these reasons, I find that the restrictions imposed by sections 9 and 10 of the Crimes Ordinance on the right to freedoms of expression and publication are necessary for the protection of national security and protection of public order (ordre public).  From the decision of Ng Kung Siu, it is clear that a person’s right to freedom of expression can be restricted for the protection of public order (ordre public) for the benefit of the legitimate societal interests to consolidate the new constitutional order in Hong Kong and to implement the policy of “One Country, Two Systems”.  The same principle should apply to the present case.  At all material times of this alleged offence up till now, HKSAR has a wounded constitutional order to heal, and a detached national unity to restore.

106.  Of course, there is still the question whether the restriction caused by these seditious offences is no more than necessary to limit the right to freedom of expression and of publication, etc.  The present law does not prevent anyone to say and publish whatever they like, including criticisms of the Central Authorities and the Government of HKSAR in any form, provided that they do so without a seditious intention. Furthermore, on a proper construction of sections 9 and 10 of the Crimes Ordinance, the prosecution is required to prove that the defendant cannot benefit from the “defence” stated in section 9(2) of the Crimes Ordinance, and that the defendant had a seditious intention when he did the act complained of.

107.  Furthermore, it is noteworthy that Article 2 of the NSL provides that the provisions of Article 1 and 12 of the BL on the legal status of the HKSAR are the fundamental provisions.  No institution, organization or individual in the Region shall contravene these provisions in exercising their rights and freedom.  Article 1 of BL provides that “the HKSAR is an inalienable part of the PRC”, and Article 12 of the BL provides that “the HKSAR shall be a local administrative region of the PRC, which shall enjoy a high degree of autonomy and come under the Central People’s Government”.  The effect of Article 2 of the NSL is simply that when anyone exercises his rights and freedom, he cannot refuse to recognize HKSAR is an inalienable part of PRC, or that HKSAR enjoys only a high degree of autonomy rather than complete autonomy.  When this simple rules are adhered to, it is unlikely for anyone to commit an offence of sedition unwittingly.

108.  I am of the view that sections 9 and 10 of the Crimes Ordinance do not impose restriction more than necessary to limit the right to freedom of expression, publication, etc. for the protection of national security and of public order (ordre public).

109.  Step 4: There is also nothing to suggest that a reasonable balance had not been struck between the restrictions and the societal benefits obtained as a result.

110.  I rule that the constitutional challenge fails.

Were the picture books seditious publication?

111.  I now turn to the issue whether the three picture books or any of them are publication having a seditious intention.  According to the Particulars of Charge, the prosecution alleges that the three books had a seditious intention in terms of section 9(1)(a), (c), (d), (f) and (g).

112.  On the approach to be adopted to ascertain if all or any of the three picture books had a seditious intention, counsel for D2 and D3 submit that since a seditious publication is a publication having a seditious intention, the seditious intention must be found within the publication itself, and the mental state and the intention of a defendant are irrelevant.  In other words, whether or not any of the books was a seditious publication has to be decided by simply reading the book itself.  What the defendant had said about the book were irrelevant and prejudicial.  The question is for the court to ascertain the intention of the publication, and not the intention of the defendant.

113.  In my view, the publisher of a book is the best person to know what messages he intends the book to convey.  His statement in this regard constitutes evidence of the intention of the book, and his statement in this regard may constitute an admission or a declaration against interest which is admissible in evidence subject to the usual criteria of voluntariness and fairness.  Of course, it does not mean that whatever the publisher says about the intention of the book is the sole or decisive factor for deciding whether the book is having a seditious intention.  It is just one piece of the evidence.  If the book cannot convey the seditious intention that the publisher intends the book to convey, for instance, due to its poor production and quality, this book cannot be held to be a seditious publication.  Furthermore, the statements made by the publisher may serve the purpose of refuting an otherwise appropriate inference that may be drawn from reading the book that it had a seditious intention.

114.  It is also submitted by the defence that reliance should not be placed on Book 4 to prove whether or not Books 1 to 3 or any of them were seditious publication on the ground that Book 4 was not included in the Charge, and in any event, it had not been published, meaning that it could be amended at any time.  I agree that the content of Book 4 should not be used as a tool to construe the intention of the other three books, though I am of the view that evidence relating to Book 4 is admissible to show the course of conduct pursued by the defendants concerned.

115.  Counsel for prosecution points out that relevant factors for consideration include (i) nature of the audience, (ii) the state of the public feelings, and (iii) the time, place and mode of publication.

116.  Counsel for D3 submits that the court should not read the books through the eyes of an extremely radical or cynical reader, but it must consider the likely effect of the books on ordinary people and on the audience to which the books are addressed.  I agree.

117.  Counsel for all defendants submit that none of the three picture books has seditious intention.  In summary, the defence contends that:

(a) the three books were simply children’s tales or fables;

(b) the three books were advocating virtues that are universally celebrated;

(c) the three books alone did not within itself provide any background of the setting but only relates a fairy tale at a high level of abstraction;

(d) the comments made in the books were mere criticism of the government, or criticism of a political nature, even if some comments are vigorously and strongly worded, expressing disapprobation of actions of the Government of HKSAR without exciting or causing public disorders by acts of violence;

(e) the books did not incite or impose any negative thought to the readers, and each book was concluded with an open-ended question, leaving it to the readers to decide what is best for them;

(f) None of the words in Book 2 had lobbied for any foreign intervention or international sanction against HKSAR and PRC and their respective officials;

(g) The books were an aid or medium to help parents and educational workers explain to children the happening of the social events in Hong Kong in the past year; and

(h) The books keep a record of the happening of the social events in Hong Kong.

118.  I have read the three books and considered if all or any of them are publication having a seditious intention.  I bear in mind that the target reader can be as young as 4 years old.  According to the recommendation printed at the back of each book, it is recommended that for children aged between 4 and 7, parents may read the book together with them.  For children aged over 7, they can read it themselves.

119.  After reading just the books themselves and without referring to any other materials including what was said by some defendants about the books, the broad brush but deep impression was that the wolves are evil and the sheep are kind.  The wolves are aggressors and the sheep are the oppressed.  The wolves are to be hated and the sheep are to be glorified.  Reading just one of the books is sufficient to produce this impression.

120.  Just as a story between the sheep and the wolves as depicted in the books, it is not wrong for the defence to say that it was just a fable teaching some universally celebrated virtues.  The wolves represent the wicked.  The Wolf-chairman is a tyrant.  He directs the wolves under him to attempt occupying the sheep village and ruin the peaceful and happy life of the sheep.  The Wolf-chairman and the wolves are the villains and must be hated.  They are to be kept away.  On the other hand, the sheep representing the virtues were to be glorified for their courage and relentless effort in protecting their home.  They are to be supported.  There is of course nothing wrong to teach children virtues like these.  There is also nothing wrong to tell them they should protect their home if some evil people come to harm them and they should resist.

121.  However, a fable only promotes universal virtues, or tells the moral of a story.  It will not identify the real characters, so as not to accuse anyone in the wrong.  But this is not the case in any of the books.  In the foreword of Book 1, it was stated explicitly by the 1^st Executive Council of GUHKST that “2019 was turning point in Hong Kong.  The anti-legislation movement wakes us up to realize that we are just frogs being boiled in warm water, and that One Country, Two Systems, separation of power, and freedom of expression were just veils over eyes that are torn apart …”.  The specific reference to the “anti-legislation movement” clearly referred to the Anti-Extradition Bill Movement. In the epilogue at the end of Book 1 (or Timeline as Counsel for D2 calls it), it was stated explicitly what was the particular event that certain pages of the book were talking about.  The title of this epilogue was “羊村守衛戰 VS 反送中運動”, and in the next line “背景資料”.  It is argued that “VS” stands for “versus”, so that there cannot be any substitution of the events or characters in the Timeline (or in real life) for any of the characters or events in the story.  In my opinion, the “VS” simply meant “contrast with”, and this page made it clear which page of Book 1 was talking about which real life events as particularized in the Timeline.

122.  Counsel for D4 submits that Book 1, as well as the other books, are just record of what had happened in Hong Kong, and it just represents the perspective of a section of the public, and the events may be exaggerated, but this form of writing is acceptable in all broadminded democratic societies, and that this is so even if some readers may find the contents disturbing, shocking or even offensive.  I agree with counsel, but still, it depends on what has really been depicted.

123.  The biggest problem about Book 1, indeed about Books 2 and 3 as well, is that after the story is told, the children are to be told that the story is real.  They will be told that in fact, they are the sheep, and the wolves who are trying to harm them are the PRC Government and the Hong Kong Government.

124.  I shall not repeat the plot of each book here.  It is not necessary to put them onto the record.  By identifying the PRC Government as the wolves, and the Chief Executive of HKSAR as the wolves masqueraded as a sheep at the direction of the Wolf-chairman, along the story line told in Book 1, the children will be led into belief that the PRC Government is coming to Hong Kong with the wicked intention of taking away their home and ruining their happy life with no right to do so at all.  The publishers of the Book clearly do not recognize that the PRC has legitimately resumed exercising sovereignty over HKSAR, but the children will be led to hate and excite their disaffection against the Central Authorities.  The children will also be led to believe that the Chief Executive of HKSAR is sent by the Central Authorities with the ulterior motive of hurting them. The publishers clearly refuse to accept the constitutional order of HKSAR after the Handover, and lead the children to look down on the Chief Executive of HKSAR with contempt.  The children are also led to believe that new immigrants from PRC are sent here deliberately to use up their resources.  The publishers refuse to accept the immigration arrangement agreed between the PRC and the HKSAR Governments and lead the children to feel discontent with the new immigrants.  The children will also be led to believe that if they are not obedient, they will be sent to prison.  The publishers therefore lead the children not to trust the administration of justice in Hong Kong and look down upon the police, the prosecution and the court with contempt.  The children are also led to believe that the Extradition Bill is a tool to suppress dissenting Hong Kong residents and subject them to arbitrary arrest, and they may even be sent to prison in China.  The children will be led to believe that the only way to protect their home is to resist and to use force if necessary against the authorities.  In similar vein, by Book 2, the children will be led to believe that the 12 fugitives are victims of oppression and unfair prosecution, and that they are forced to leave their home in short notice, only to find that they had already been closely monitored by the wicked force to be taken to prison.  The children will be led to believe that these 12 fugitives are unfairly detained in PRC.  In Book 3, the children will be led to believe the Government deliberately allowed people coming from China to make their home dirty and spread the pandemic.  The publishers incite discontent or disaffection amongst Hong Kong residents.

125.  It is alleged by the defence that what the defendants intended to do was to leave a record of the event.  It is submitted that the court should not decide what the defendants had said is true or not.  I agree that this is the state of the law at this point of time, and the question of misinformation and disinformation may have to be addressed by other legislation.  However, what has happened here is that the publishers of the books clearly refuse to recognize that PRC has resumed exercising sovereignty over HKSAR, nor do they recognize the new constitutional order in the Region, and lead the children to think that what the authorities both in PRC and HKSAR have done is wrong and illegitimate.

126.  It is also submitted that the Books did not mean to indoctrinate any sort of ideas into the mind of the children.  Great reliance is placed on the open question at the end of each book for the children to answer.  It is said that children facing this kind of question came up with different answers, for instance, one said he would fight the wolves, and the other said he would hide out of fear.  In my judgment, it is hypocritical to say that the children are allowed an open mind to decide the answer.  It is patently clear from the structure of each book that the thinking of the children is to be guided in a particular way when the story is being told, and when their mindset is already confined in a particular mode, the so-called open answer from the child himself is no more but a guided answer.  The danger of this type of answer is that the child may think that the idea is his, not knowing that it has been fed to him, rendering it extremely difficult to change the way of his thinking subsequently.

127.  There is no submission that the publication is not seditious upon any of the section 9(2) ground.  There is no evidence to this effect in any event, so that there is nothing for the prosecution to disprove.

128.  Upon the analysis above, I hold that each of Books 1, 2 and 3 is a publication having seditious intention.  The seditious intention stems not merely from the words, but from the words with the proscribed effects intended to result in the mind of children as stated in section 9(1)(a), (c), (d), (f) and (g).

Was there the alleged conspiracy, and if so, who took part in it?

129.  In order to establish the offence of conspiracy, the prosecution has to prove the following elements[40]:

(a) An agreement between two or more persons.

(b) The future course of conduct agreed under that agreement to be pursued.

(c) The intentions of the parties under that agreement.

(d) If the agreement is carried out in accordance with the parties’ intentions, this will necessarily amount to or involve the commission of an offence by one or more of the parties to the agreement or would do so but for the existence of facts which render the commission of the relevant offence impossible.

130.  There is no dispute that Book 1, Book 2 and Book 3 are the publications of GUHKST.  This per se provides direct evidence that all executives of the Executive Council of GUHKST had participated in this agreement to print, publish, distribute, display and reproduce the three picture books unless there is evidence that may prevent the inference to be drawn.

131.  As to who were the executives at the material times, the evidence has proved beyond reasonable doubt that D1 to D5 and Wong Hoi-ching were the executives of the 1^st Executive Council of GUHKST from 12 December 2019 until the date of arrest on 22 July 2021.

132.  There is no evidence that after the defendants and Wong Hoi-ching had changed their duty posts after the election into the 1^st Executive Council.  It therefore means that, at all material times, D1 was the Chairperson, D2 and Wong Hoi-ching were the 2 Vice–chairpersons, D3 was the Secretary, D4 was the Treasurer, and D5 was the Officer of the 1^st Executive Council of GUHKST. 

133.  There is also no evidence to show that any of the defendants had not participated in the functioning of the Executive Council since their election as executives.   On the contrary, Clause 7.3 of the Rules of GUHKST provides that Executive Council shall hold meeting at least once every two months, and the quorum has to be made up by at least half of the executives[41]. The only reasonable inference is that the defendants must have been performing their function as the executives.

134.  There is also clear evidence that GUHKST was intended to be used as a political platform and that each of these defendants agreed to it.  Their intention was manifested in the declaration of political stance made by them before and after their election into the Executive Council of GUHKST that they would stand for the Powerless and the Voiceless, and pursue for the 5 Demands[42]. It is submitted that GUHKST was not a political platform because its executives had also participated in a lot of other work in the name of the trade union. Such work included communicating with government departments, Education Bureau, Social Welfare Department and employers about measures to be taken against Covid-19, and work involving its members.  I accept that such work has been done, but it is clear and it is only common sense that all these work can be done at the same time together with publishing the picture books.  In my view, GUHKST was clearly set up for political purposes, and D1 had said so in one of the radio interviews.  D1 said, “工會是政治能量的載體。” (Exhibit P34(d)).

135.  Because of this reason, it is not surprising that GUHKST will publish the picture books in question. In fact, there are many publications of GUHKST which must have been prepared and/or approved by the defendants as the executives of the Executive Council which revealed their connection with the publication of Books 1 to 3.

136.  In the 2019 – 2020 Annual Report[43], it was reported that the Executive Council had created an Anti-Extradition Movement story and invited illustrator Rainection to draw pictures, and the books were printed in “yellow shops”, and the Executive Council had also created the related “Reading-together guide”.

137.  In Newsletter No. 3 [Exhibit P36(c)], it was reported that “the executives had created a story book about the Anti-Extradition Movement, using metaphors to narrate the causes of the Movement, with a view to using the expertise of speech therapists to help parents to grasp the skill of explaining social events to children[44]”, and that the image of Book 1 was printed.  Surrounding this image of Book 1 was the following summary about the publication and production of Book 1:

(a) books were distributed in about 75 “yellow” shops, district counsellors’ offices and organizations;

(b) illustrator Rainection was invited to assist in the drawing with printing then done in “yellow” shop;

(c) expenses HK$14,385.53, donation received HK$18,546.8;

(d) people reached: 217,365;

(e) interviewed by 3 media (inmediahk, Apple Daily, and Radio Free Asia);

(f) e-version and reading-together guide uploaded, and audio book produced in collaboration with Hang Tan Collage;

(g) 3,000 copies printed after increasing printing twice; and

(h) sharing 1,165 times[45].

138.  In Newsletter No. 5 [Exhibit P36(e)], its first page was printed with an image of Book 2, and its third page contained the following report: “producing [title of Book 2] children picture book, placed inside about 30 shops with good conscience for citizens to collect for free, and received interview by two media[46]”.

139.  Pursuant to section 65C, Criminal Procedure Ordinance, the defendants admitted that Newsletters No. 3 and 5 had announced news concerning publications of the picture books. 

140.  From all these Annual Report and Newsletters about publication of Book 1 and 2, in the absence of any evidence to the contrary, the only reasonable and irresistible inference is that each one of them was aware of the publication of Books 1 and 2, and that they agreed to the publication of Books 1 and 2 by the Executive Council in which he or she was an executive.

141.  In the platform booklet of the 2020 – 2021 Executive Council of GUHKST (Exhibit P35B), it was stated that Book 2 was published by the Trade Union as part of propaganda education.  It was further stated under the column of “future work direction” that “produce new picture books”(製作新繪本)[47]. Since this platform booklet set out the working directions of the Executive Council for the year 2020 – 2021, i.e. the second year of the term of office of D1 to D5 and Wong Hoi-ching, in the absence of any evidence to the contrary, the only reasonable and irresistible inference to be drawn is that all of them had agreed that further picture books similar to Books 1 and 2 will be printed, published, distributed, displayed, etc.  As a matter of fact, Book 3 was subsequently published on 16 March 2021, and Book 4 was in the process of being prepared when all the defendants were arrested.  The truth of the statements made by the defendants in their working platform has been confirmed.

142.  Other than being one of the executives in the Council, there are other evidence linking each of the defendants to the agreement for the printing, publication, distribution, display, etc. of Books 1, 2 and 3.

143.  D1 had attended 4 media interview to promote Book 1, one media interview to promote Book 2, and one media interview to promote Book 3.  D1 is also the administrator of the website and the social media accounts in Facebook, Instagram and Telegram of GUHKST by which the books were published online, D1 liaised with shops for distributing Books 1 to 3, D1 distributed Book 3 in the street, D1 at the time of her arrest possessed at her home 2 hardcopies of Book 1, 3 hardcopies of Book 2 and 3 hardcopies of Book 3 (and that she has more than one copy of each book leads to the irresistible inference that she possessed these books for the purpose of publication), D1 was in possession of the screen shot relating to draft content of Book 4 in her mobile phone and computer.

144.  D2 had attended 3 media interview to promote Book 1, one media interview to promote Book 2, and one media interview to promote Book 3, D2 distributed Book 3 in the street, D2 approached shops for display or distribution of hardcopies of Book 3, D2 held one Parent-Children Reading Together Session with D4, D2’s phone number was given to the printer of the books and settled 5 invoices with monies from her bank account, D2 at the time of arrest possessed at her home 3 hardcopies of Book 1, 13 hardcopies of Book 2, and 47 hardcopies of Book 3 (and that she has more than one copy of each book leads to the irresistible inference that she possessed these books for the purpose of publication).

145.  D3 at the time of arrest possessed at her home 12 hardcopies of Book 1 and 5 hardcopies of Book 3 (and that she has more than one copy of each book leads to the irresistible inference that she possessed these books for the purpose of publication).

146.  As to D4, screen captures of Book 1 and the images of promotion banners of Book 1 and Book 3 were found in D4’s mobile phone.  Softcopies of Book 4 were found in D4’s computer.  D4’s phone number was provided to the printer of the books, digital images of 3 invoices for printing books were found in D4’s computer, D4 liaised with shops for distribution of books, D4 held the 1^st Parent-Children Reading Together Session together with D2, D4 has at the time of arrest possessed at his home 3 hardcopies of Book 1, 6 hardcopies of Book 2, and 5 hardcopies of Book 3 (and that he has more than one copy of each book leads to the irresistible inference that he possessed these books for the purpose of publication).

147.  From D5’s mobile phone, draft note of Book 3 was found.  Screen captures of Book 4 were found via the logged in Google drive account of D5, and images of promotion banners of Book 2 and Book 3.  D5 possessed a PowerPoint file of the draft presentation for the 1^st Parent-Children Reading Together Session in his mobile phone, Instagram and WhatsApp messages in relation to the 1^st and 2^nd Parent-Children Reading Together Session (including confirmation messages to the applicants), and images in relation to promotion of the 2^nd Reading session.  D5 liaised with shops for distribution of books.  D5 has at the time of arrest possessed at his home 17 hardcopies of Book 1, 6 hardcopies of Book 2, and 1 hardcopies of Book 3 (and that he has more than one copy of each book leads to the irresistible inference that he possessed these books for the purpose of publication).

148.  Since it is admitted by all defendants pursuant to section 65C that at the time of their arrest, hardcopies of Books 1, 2 and 3 were found in their possession, and since each one could have access to the website and social media accounts of GUHKST, in the absence of any evidence to the contrary, the only reasonable and irresistible inference to be drawn is that they each knew the contents of each book, and agreed for them to be published.   For this reason, I also find that each one of them had a seditious intention to publish the books.

149.  I also find that it has been proved beyond reasonable doubt, from the roles played by each of the defendants as particularized above, each of them had between 4 June 2020 and 22 July 2021 entered into an agreement amongst themselves and with Wong Hoi-ching and others to print, publish, distribute, display, and/or reproduce Books 1, 2 and 3, knowing that the books printed or to be printed are publications with seditious intention.  I find that they intended to have this agreement carried out, and in the course of carrying out the agreement, Books 1, 2 and 3 had already been published, and Book 4 was being prepared.

150.  Subject to the time bar argument, I shall convict D1 to D5 of the Charge.

Time bar

151.  Section 11 of the Crimes Ordinance provides that “No prosecution for an offence under section 10 shall be begun except within 6 months after the offence is committed.”  On the other hand, Section 159D provides in essence that if an offence has been committed pursuant to a conspiracy, and there is a time limitation for prosecuting that substantive offence, once prosecution of the substantive offence is already time-barred, the prosecution cannot circumvent the time bar by prosecuting the defendant for entering into a conspiracy to commit that offence.  The legal principle is clear.

152.  Counsel for the defendants submit that there was only one single agreement according to the prosecution, and the publication of the 3 books are simply different parts of that single transaction.It is pointed out that Book 1 was published on 4 June 2020.  Book 2 was published on 19 December 2020.  Book 3 was published on 16 March 2021.  No charge was laid against D2 until 23 July 2021.  It is then submitted that the Charge was out of time in so far as it related to the substantive publications of Book 1 and Book 2.

153.  The defence points out that according to section 159A of the Crimes Ordinance, it is possible for a conspiracy to involve more than one offence.   It is submitted that the prosecution has formulated the Charge as one single offence of conspiracy in relation to the three books.  The offence of conspiracy was therefore complete when the agreement was made.  If any single offence has been committed pursuant to the agreement alleged, the limitation period applies, and no section 159A proceedings for a conspiracy involving that underlying substantial offence should be initiated.

154.  The submissions by the defence must be rejected.  Section 159A of the Crimes Ordinance has made it clear that if a person agrees with another person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intention, will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement, he is guilty of conspiracy to commit the offence or offences in question.  In other words, if there is an agreement to pursue a course of conduct that involves the commission of a series of substantive offences on a continuous basis, that person is guilty of a conspiracy to commit the offences in question, and that conspiracy will only come to an end when that person and the others agree that they will no longer pursue that course of conduct, or he himself withdraws from the agreement. 

155.  In the present case, it is stated in the Particulars of the Charge that the alleged offence took place between 4 June 2020 and 22 July 2021.  The prosecution is clearly alleging that the conspiracy in question was an offence continuing throughout this period of time.  It is also clear from paragraph 3 of the prosecution’s amended opening that it is alleging that the defendants and the others “had embarked upon an agreement to cause Book 1 to Book 3 to be printed, published, distributed, displayed and/or produced”.  The evidence has also shown that the three books were printed and published as a series of books, and there is also evidence that Book 4 was about to be printed and published as text image or e-edition of Book 4 were found in the electronic devices of D1, D4 and D5 at the time of their arrest.  It is also a fact that when D2 and D4 were holding the Parents-Children Reading Together Session, they had arranged Book 1 as the book to read (which clearly proves that the three books form one series of publication), and D2 and D4 holding this kind of reading-together session with children and their parents in which they told the parents and children how to read the book was in fact an act amounting to publication of Book 1.  Further Reading Session of this kind was arranged to be held on 25 July 2021, which did not take place just because the defendants were arrested.  It is therefore beyond any shadow of doubt that the conspiracy entered into between the defendants had not come to an end before their arrest, and that the conspiracy was not just for printing of the book, but also for publishing, distributing and displaying the books as well. 

156.  Furthermore, even if the publication date of Book 3 were taken to be the date when the conspiracy ended (which should not be the case), prosecution of the offence would only be time-barred by 15 September 2021.  For these reasons, I reject the defence submissions and hold that the prosecution is not time barred.

157.  As the prosecution is not time barred, each of D1 to D5 is convicted as charged.