HKSAR v. CHO SUET SUM CHLOE AND ANOTHER

DCCC 767/2021

[2022] HKDC 119

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 767 OF 2021

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RULING ON NEWTON HEARING
AND REASONS FOR SENTENCE

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1.  D1 and D2 pleaded guilty to one charge of conspiracy to print, publish, distribute, display or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159Cof the Crimes Ordinance, Cap. 200.  They also admitted the summary of facts prepared by the prosecution.

2.  The particulars of offence, after amendment, alleged that the seditious publications in question had an intention to:

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

(b) to excite 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; and

(c) to counsel disobedience to law or to any lawful order; and/or

(d) to incite persons to violence.

3.  Despite D1’s guilty plea and admission of facts, Mr Steven Kwan, the learned counsel for D1, made it clear that D1 did not admit that the publications had an intention to incite persons to violence, though D1 accepted that the publications had the seditious intention specified in items (a), (b) and (c) of the particulars of the charge.

4.  Mr Ronny Leung, the learned counsel for D2, informed this court that D2 would not take the same issue as D1.

5.  A Newton hearing was conducted to determine whether the publications in question had also an intention to incite persons to use violence.  Both the prosecution and D1 did not call any live witnesses to testify in the Newton hearing.  Each party made their closing submissions on the basis of the facts admitted by the defendants.

Admitted Facts

6.  Around May 2020, D1 and D2 became acquainted with each other when they attended an activity held by a political organization called “Mong Kok Gau Wu Tyun” (旺角鳩嗚團).  They had chats and exchanged their telephone numbers for communication. 

7.  Knowing that D2 had previous experience in designing propaganda, D1 asked D2 to help design a leaflet advocating for the independence of Hong Kong.  D2 agreed. 

8.  D2 then designed a double-sided colour leaflet (“the Leaflet”) for D1.  He downloaded from the internet an image of a defiled bauhinia without the 5 star-shaped stamens and created his design with a photo-editing application on his mobile phone.  D2 added the Chinese texts onto both sides of the Leaflet. 

9.  On 3 October 2020 at 6:21 p.m., D2 sent an image (which was the front page of the Leaflet design)to D1 via the WhatsApp messenger of his mobile phone.

10.  On 5 October 2020 at 12:37 p.m., D1 forwarded an image (which was the back page of the Leaflet design) to D2 via the WhatsApp messenger of her mobile phone, followed by her voice message asking D2 whether this page was to replace the earlier page, and whether another back page would be prepared.  D2 replied on the same day at 1:44 p.m. with a voice message explaining that the image forwarded by D1 was the back page while the earlier image was the front page of the Leaflet design, and that the Leaflet was to be double-sided.  D1 replied at 2:01 p.m. on the same day by a text message that she understood.

11.  D1 then used the computer and photocopier in her office to print and reproduce hardcopies of the Leaflet.

12.  When D1 met D2 subsequently, she showed hardcopies of the Leaflet to D2 who confirmed that the hardcopies were in order.

13.  On 11 December 2020, D1 displayed, published and distributed hardcopies of the Leaflet at various places in the vicinity of and on 1/F, Causeway Centre, 28 Harbour Road, Wanchai.  Her actions or parts of them were witnessed by a security guard on patrol (PW1) and/or captured by CCTV of the area.

14.  At about 4:08 p.m.[1] on 11 December 2020, while PW1 was patrolling 1/F of Causeway Centre, he saw D1 placing two leaflets on the ground outside Shop 106 and then walking away.  PW1 picked up the two leaflets which were hardcopies of the Leaflet. 

15.  PW1 also found other hardcopies of the Leaflet on the ground outside Shops 108 and 114, the parapets of the footbridge connecting Causeway Centre and Sun Hung Kai Centre, the stairs of Steward Road footbridge leading to Harbour Road, and at the area of Harbour Road.   PW1 then went to the security control room to check and view the relevant CCTV footages. 

16.  The relevant CCTV footages showed that D1 entered 1/F of Causeway Centre from Steward Road footbridge at about 4:06 p.m..  She then took out some hardcopies of the Leaflet from her bag, and placed them on the parapets by the sides of the respective entrances of the two footbridges connecting 1/F of Causeway Centre and Sun Hung Kai Centre. One of the footbridge entrances was opposite to Shop 113 and the other one was opposite to Shop 109.  D1 also placed some hardcopies of the Leaflet at various places on 1/F of Causeway Centre.  She then sat at the outdoor dining area of Shop 114.

17.  Some of the hardcopies of the Leaflet placed by D1 on the parapets were blown away by wind and fell onto the floor and other places in the vicinity.  Some passers-by stopped and read the contents of the Leaflet when they were walking past.  A female passer-by used her mobile phone to take a photograph of one hardcopy lying on the ground.

18.  After viewing the relevant CCTV footages, PW1 went to the locations concerned to pick up the hardcopies of the Leaflet left behind by D1.  He picked up a total of 100 hardcopies of the Leaflet and placed them in the security control room.  He then went to Shop 114 with a view to locating D1.  A report was made to the police.

19.  When police officers arrived at 1/F of Causeway Centre at about 4:45 p.m., PW1 pointed out D1 to the police as the person placing hardcopies of the Leaflet at various locations there.  The officers found one hardcopy of the Leaflet outside Shop 114.  They kept observing D1.

20.  D1 subsequently met a male at the outdoor dining area of Shop 114.  They sat together.  At around 6:03 p.m. when they were leaving Shop 114, police officers followed and intercepted them. 

21.  Upon enquiries, D1 admitted that the hardcopies of the Leaflet belonged to her.

22.  The police officers seized a total of 101 hardcopies of the Leaflet that were picked up by PW1 and the police, as well as the relevant CCTV footages of 1/F of Causeway Centre.  Each hardcopy was 15 cm x 10 cm in size, printed in black-and-white and double-sided.

23.  At around 6:04 a.m. on 6 June 2021, D1 was arrested by DPC11924 at her residence.  Under caution, D1 remained silent.  With a search warrant, the police conducted a house search and seized inter alia 3 mobile phones of D1 and the clothing worn by her on 11 December 2020.  One of the mobile phones contained the relevant WhatsApp messages between D1 and D2.

24.  Between 1:18 p.m. and 2:41 p.m. on the same day, the police searched D1’s workplace at the Hong Kong Institute of Vocational Education (“IVE”) in Tsing Yi with another search warrant.  A piece of paper in A4 size containing 4 coloured copies of the Leaflet was found on a rack at the right hand side of D1’s working desk.  Soft copies of the Leaflet were found in D1’s office computer.  The corresponding electronic files were created on 5 October 2020 at 3:08 p.m.

25.  In the first video-recorded interview on 6 June 2021, D1 stated under caution that she worked as clerical staff at IVE (Tsing Yi office), and that she was the person captured in the relevant CCTV footages of 1/F of Causeway Centre.  She further stated that she had placed hardcopies of the Leaflet at various locations there.

26.  In the second video-recorded interview on 7 June 2021, D1 stated under caution that she had worked at IVE (Tsing Yi office) since December 2019, and that the office computer from which the soft copies of the Leaflet were found was used by her. She also stated that she had retained different kinds of propaganda (including the Leaflet) in her office computer, and that she considered the propaganda as “dreams that had not yet been achieved” (未成事嘅夢想).

27.  At around 8:31 p.m. on 6 June 2021, the police went to the residence of D2 and executed a search warrant.  D2 was not inside but returned at around 9:07 p.m..  A red iPhone and two sim cards were found on D2.  Images of semi-finished designs of the Leaflet were found in the photo album of his iPhone.  The creation dates of these images as shown on his iPhone were between 3 and 5 October 2020.

28.  D2 was arrested by DPC8447 at around 9:13 p.m..  Under caution, D2 stated that he knew D1 from Gau Wu Tyun, and that he had helped D1 design propaganda upon her request, but he did not know whether D1 had distributed it.

29.  In two subsequent video-recorded interviews, D2 stated under caution inter alia that: -

(a) He knew D1 from Gau Wu Tyun. They first met at Sai Yeung Choi Street, Mong Kok, in about May 2020. They had chats and exchanged their mobile phone numbers for communication. They usually met several times a month.

(b) After D1 became aware that D2 had helped in the design of propaganda for a group called “深水埗文宣組” between June and December 2019, D1 asked D2 to help her design propaganda to advocate the independence of Hong Kong and raise public awareness on this matter. D2 designed the Leaflet for D1.

(c) D2 explained his design of the Leaflet. The defiled and withered bauhinia represented the idea that Hong Kong was already dead and had entered into a dark era, and the red paint thereon represented blood. He downloaded the defiled bauhinia design from Google.

(d) He used a photo-editing application on his mobile phone to design the Leaflet. He added the Chinese texts onto the design himself.

(e) After he had finished the design, he used his iPhone to send it to D1 via WhatsApp in October 2020.

(f) When he met D1 later when they attended the activities held by Gau Wu Tyun, D1 showed him hardcopies of the Leaflet and asked him whether they looked good, and he said “okay” in reply. D1 told him that she had used the photocopier in her office to print the Leaflets. She also asked him to distribute the Leaflets together. He refused.

(g) In mid-October 2020, D1 asked him and 2 other males who were also members of Gau Wu Tyun to distribute the Leaflets by scattering them down from a footbridge in Mong Kok. He and one of the males refused, but D1 and the other male distributed the Leaflets together.

(h) D1 had asked him to design propaganda several times. He knew that D1 had asked other teenagers in Gau Wu Tyun to distribute the propaganda designed by him.

(i) He had deleted the WhatsApp messages between him and D1 prior to 8 October 2020 because he worried that he might have contravened the National Security Law.

The Leaflet

30.  The front page of the Leaflet bore the title “香港聯邦共和國” (Federal Republic of Hong Kong).

31.  On the front page of the Leaflet, underneath the title was a logo designed by D2 (“the Logo”).  The Logo was a rectangle in black.  At the centre of the rectangle was a 5-petal bauhinia which resembled the white 5-petal bauhinia in swaying motion at the centre of the regional flag of HKSAR (“the Regional Flag”) but with differences.  For the sake of describing the differences, the 5 petals of the bauhinia in the Logo were numbered 1 to 5 from the top in a clockwise direction.  The differences were as follows:

(a) the rectangle of the Regional Flag was red in colour, but the rectangle of the Logo was black in colour;

(b) the 5 petals of the bauhinia in the Regional Flag were of the same size, but petals 2 and 3 of the bauhinia in the Logo were smaller than petals 1, 4 and 5. As between petals 2 and 3, petal 3 was smaller than petal 2;

(c) each petal of the bauhinia in the Regional Flag had smooth edges, but petals 2, 3 and 4 of the bauhinia in the Logo had broken edges as if part of the edges had fallen off;

(d) each petal of the bauhinia in the Regional Flag bore a red 5-pointed star and a red style, but each petal of the bauhinia in the Logo did not have a 5-pointed star; in addition, each of petals 1, 4 and 5 had a black style, but each of petals 2 and 3 had no style; and

(e) each petal of the bauhinia in the Regional Flag was white in colour (with the red 5-pointed star and the red style inside), but each petal of the bauhinia of the Logo was in a combination of white and red in different proportions. White was the base colour for each petal of the bauhinia in the Logo (since all petals had white colour, with petal 4 almost completely white, and the edges of petal 2 were in white encircling a patch of grey colour that extended across the surface of the petal). About three-quarter of the surface of petal 1 was in red, about half of the surface of petal 3 was in red, and about one-third of the surface of petal 5 was in red. The red colour started from the tip of each of these 3 petals and extended towards the centre of the bauhinia, and there were small red dots on these 3 petals as well. On the other hand, petal 2 had about two to three small red dots inside the patch in grey, and petal 4 had about 7 to 8 red dots.

32.  On the front page of the Leaflet, underneath the Logo were the Chinese texts setting out the capital, the official languages, the main ethnic group, the political system, the legal system, the constitution, the government, and the parliament of the Federal Republic of Hong Kong.  There was also one row for President which had not been filled in.

33.  On the back page of the Leaflet, on the top was a logo in circular shape with the same bauhinia design as the Logo in the front page.

34.  On the back page of the Leaflet, underneath the logo were 4 sentences in Chinese texts which were quoted in Chinese below as different English translations of these sentences had been used by Miss Karen Ng, Acting Senior Public Prosecutor, and by Mr Kwan in their closing submissions for the prosecution and for D1 respectively:

(a) “香港人要獨立建國！”

(b) “香港人要取回主導權！”

(c) “抵抗赤化，唯有獨立”

(d) “香港人，建軍！建國！”

The Newton hearing

35.  The issue was whether the publications in question, i.e. the Leaflet, had also an intention to incite persons to use violence.

36.  It was common ground that D2 was the person who designed the Leaflet.  D2 was therefore the best person to explain his design, and the messages that he and D1 intended to be conveyed by the Leaflet.  He was however not called as a witness in the Newton hearing.  In the course of her submissions, Miss Ng referred to the statement made by D2 under caution during his video-recorded interview about the Leaflet design.  However, as Mr Kwan had rightly pointed out, what D2 had said under caution was not evidence admissible against D1.  Hence, I ignored what D2 had said about the Leaflet design in his cautioned interviews.  I also reminded myself that the fact that D2 did not dispute that the Leaflet had an intention to incite persons to violence was irrelevant, and that this issue had to be determined as if D2 had raised the challenge as well.

37.  Miss Ng submitted that, to ascertain the intention of the Leaflet, its Chinese texts had to be read in context and together with the Logo designed by D2 in light of the reality in Hong Kong.  She pointed out that for the 4 sentences printed on the back page of the Leaflet, the first sentence “香港人要獨立建國！” meant “Hong Kong people have to establish an independent state”, the second sentence “香港人要取回主導權！” meant “Hong Kong people have to regain the dominating power”, and the first part of the third sentence “抵抗赤化” meant “resist communization”.  Miss Ng submitted that since “communization” was a reference to the ideology of the Communists, this part of the sentence clearly meant resisting the People’s Republic of China (PRC).  Miss Ng submitted that the first three lines of the Chinese texts in the back page of the Leaflets advocated the independence of Hong Kong and incited the people of Hong Kong to establish an independent sovereign state, to regain the dominating power, and to resist PRC which were inconsistent and incompatible with the present constitutional and legal status of the HKSAR.  As to the fourth sentence “Hong Kong people, build an army! Establish a state!”, Miss Ng submitted that since only the Central People’s Government of PRC could station an army in Hong Kong which did not have an army of its own according to the Basic Law, the intention behind urging the Hong Kong people to build an army was clearly to have an army available to use violence or force against PRC and the HKSAR Government and to procure an alteration in the political structure of HKSAR as advocated in the Leaflet.  Miss Ng submitted that when the meaning of this sentence was considered together with the Logo on the top of the front and back pages of the Leaflet, which was a defiled and withered bauhinia covered partly in red which signified blood, the only reasonable and irresistible inference to be drawn was that the Leaflet had also an intention to incite people to violence.

38.  Mr Kwan submitted that the prosecution’s interpretation was only imagination.  He submitted that the term “seditious intention” in the offence charged did not refer to the intention of the publisher, but the intention carried by the publication itself.  Hence, as submitted by Mr Kwan, the court should not engage in an exercise to find out the intention of the publisher, but should only look at the publication itself.

39.  Mr Kwan pointed out that the front page of the Leaflet referred only to the structure of the Federal Republic of Hong Kong.  As to the back page, Mr Kwan submitted that while the prosecution might be able to say that the words in the first sentence “香港人要獨立建國！”, meaning “Hong Kong people requires independence”, were inconsistent with the Basic Law, it had to be noted that achieving something inconsistent with Basic Law did not mean that it could only be achieved by violence.  Mr Kwan said that since the Central People’s Government was the sovereign of HKSAR and had the power to decide on its political structure, it was technically open to the Central People’s Government to permit independence in Hong Kong, bearing in mind that there was mechanism in the Basic Law for its amendment.

40.  As to the second sentence “香港人要取回主導權！”, Mr Kwan said that it meant “retaining the initiative”.  Mr Kwan submitted that it was nothing but a statement of fact because the Hong Kong people had the initiative and the right to persuade the Central People’s Government by peaceful means to change the political structure of Hong Kong.  Mr Kwan stressed that when someone was talking about changes to a political structure which was different from that in the Basic Law, it did not mean that this person was inciting violence, and that the Central People’s Government was always open to persuasion by the representatives and the citizens of Hong Kong. 

41.  As to “抵抗赤化” or “resisting communization”, Mr Kwan submitted that it did not necessarily mean resistance by violence, and that it might be resistance by other means such as advocating people not to buy from shops with Chinese background.

42.  About the establishment of an army and independence, Mr Kwan submitted that they were theoretically possible since the Central People’s Government being the sovereign of Hong Kong could permit anything.  He pointed out that D1 admitted that she intended to excite the people of Hong Kong to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established, but this did not necessarily import the notion of violence.  Mr Kwan cited the case of Wallace-Johnson v The King[2] in which the Privy Council hearing an appeal from the West African Court of Appeal held that incitement to violence was not a necessary ingredient of the crime of sedition in the Criminal Code of the Gold Coast which was in similar terms to the offence of sedition in Hong Kong.  He also cited the sentencing notes and the appeal decision of The Queen v Timothy Selwyn[3], which was a New Zealand case.  Mr Kwan referred to the facts of that case, and submitted that those facts showed the kind of incitement to violence that was envisaged for the offence of sedition.  Mr Kwan observed that the statutory offence of sedition was created within the colonies of the British Empire in the 1930s, and the offence of sedition in New Zealand, Malaysia and Hong Kong were all in similar wordings.

43.  Mr Kwan stressed that the Leaflets contained no words referring to violence or unlawful means.  He submitted that it was only in extreme interpretation or imagination that was put on the words by the prosecution that one could seek a hint of violence.  

44.  Mr Kwan argued that defilement of the Regional Flag was an incitement for disaffection of the government as well as a contempt of the government, but it was not an incitement to violence.  Mr Kwan stressed that there had to be an incitement to use actual violence, or else any seditious publication that had an intention as shown in the first three limbs of the charge would necessarily incite persons to violence.

45.  Mr Kwan stressed that changes in the political system of Hong Kong could be achieved by lawful means.  He submitted that the court had to look at the publication itself and the evidence admissible against D1, and asked the question whether the prosecution by pointing to the publication in question, and the circumstances of their distribution by leaving them on the street, had proved beyond all reasonable doubt that the publication had an intention to incite persons to violence.

Ruling

46.  I agree with Mr Kwan that I have to examine the publication itself, i.e. the Leaflet, to determine whether it had an intention to incite persons to violence.  However, I disagree with Mr Kwan that it is not necessary to find out the intention of the publisher because if it cannot be proved beyond reasonable doubt that D1 had the intention to incite persons to violence, she would have no mens rea to commit the offence charged under this particular limb.  In fact, I have to consider all the circumstances of the case surrounding the publication of the Leaflet to consider whether it had an intention to incite persons to violence.

47.  In R v Aldred[4], an English case decided in 1909, the publisher of a periodical Indian Sociologist which advocated the independence of India was charged with seditious libel for publishing materials which applauded political assassination as a means of achieving a political goal.  He was found guilty and sentenced to 12 months’ imprisonment.  On how to consider whether the publication was seditious, Coleridge J. directed the jury in his summing up as follows:

“In arriving at a decision of this test you are entitled to look at all the circumstances surrounding the publication with a view of seeing whether the language used is calculated to produce the result imputed; that is to say, you are entitled to look at the audience addressed, because language which would be innocuous, practically speaking, if used to an assembly of professors or divines, might produce a different result if used before an excited audience of young and uneducated men. You are entitled also to take into account the state of public feelings. Of course there are times when a spark will explode a powder magazine; the effect of language may be very different at one time from what it would be at another. You are entitled also to take into account the place and the mode of the publication. All these matters are surrounding circumstances which a jury may take into account in solving the test which is for them, whether the language used is calculated to produce the disorders or crimes or violence imputed.” (Emphasis in italics)

48.  In his submissions, Mr Kwan did not deny that the Leaflet advocated the independence of Hong Kong and the building of an army in Hong Kong.  He accepted that such matters were inconsistent with the Basic Law.  His argument in gist was that whatever changes that the Leaflet had advocated, it did not necessarily follow that violence would be used to achieve those changes because there were available peaceful means such as persuasion and economic pressure to bring about the changes. 

49.  In my judgment, Mr Kwan’s submissions were refuted by the very wordings of the Leaflet itself. Nowhere in the Leaflet urged or suggested the Hong Kong people to employ peaceful means to achieve its stated purposes.  The Leaflet however was not silent on the means to be employed.  It is because it did ask the Hong Kong people specifically to build an army (建軍): see the fourth sentence on the back page.

50.  When the 4 sentences in Chinese on the back page were read together, the first three sentences stated what the Leaflet incited the Hong Kong people to do: (1) to establish an independent sovereign state which meant to separate HKSAR from PRC, (2) to regain the dominating power to make decision which meant to take away the power of PRC and/or the Government of HKSAR to make decisions for Hong Kong, and (3) to resist communization which meant to resist PRC, and the ending of the third sentence stated the conclusion that independence was the only way out (唯有獨立). The fourth sentence “香港人，建軍！建國！” (“Hong Kong people, build an army! Establish a state!”) was clearly an incitement to the people to take action as stated to effect the independence of Hong Kong.

51.  Mr Kwan submitted that the changes stated in the Leaflet could be achieved by discussion with the Central People’s Government and obtaining permission from it.  However, it is clear that the Central People’s Government will never permit such changes to occur.  The constitutional order and law in Hong Kong are clear.  Article 1 of the Basic Law of HKSAR provides that the HKSAR is an inalienable part of PRC. Article 12 of the Basic Law of HKSAR provides that HKSAR shall be a local administrative region of the PRC, which shall enjoy a high degree of autonomy and come directly under the Central People’s Government.  In addition, Article 1 of The Law of the People’s Republic of China on Safeguarding National Security in the HKSAR (“NSL”) which came into effect in HKSAR at 11 p.m. on 30 June 2020 stated that the NSL was enacted for the specific purposes of ensuring the resolute, full and faithful implementation of the policy of One Country, Two System, and preventing, suppressing and imposing punishment for offences of secession, subversion, etc.  It was therefore impossible that the Central People’s Government would have discussed or permitted the changes advocated in the Leaflet to occur.  Likewise, the publisher of the Leaflet, i.e. D1 and D2, knew very well that such permission would never be forthcoming, and that was why they said in the ending part of the third sentence that “independence was the only way out”.  In order to achieve that independence, they called upon Hong Kong people to build an army and to establish a state in the fourth sentence. The fact that D1 and D2 were of the view that it was futile to discuss with the Central People’s Government to achieve the independence of Hong Kong, and that they resorted to building or procuring the building of an army for that purpose gave rise to the only reasonable and irresistible inference that they had never thought of using the peaceful means as suggested by Mr Kwan to procure the changes they sought.

52.  I may also add that it was fanciful for Mr Kwan to submit that it was theoretically possible for the Central People’s Government to permit the building of an army in Hong Kong.  Under Article 14 of the Basic Law of HKSAR, the Central People’s Government is solely responsible for the defence of HKSAR, and the army stationed here is the PRC army.  HKSAR does not have an army of its own.  Besides, it can be said with certainty that not one single sovereign country in this world will allow an army of another country or group to station in its own territory. It was therefore totally impossible, not even in theory, for the Central People’s Government to give the permission to build an army in Hong Kong, and this point was so obvious that D1 and D2 also knew it very well, not to mention that they knew full well that the purpose of building an army in HKSAR was to resist the Central People’s Government and the Government of HKSAR.  For these reasons, the only reasonable and irresistible inference to be drawn was that D1 and D2 had never intended to seek permission to build an army in Hong Kong.

53.  It was also significant to note that in the fourth sentence, D1 and D2 called upon the Hong Kong people to take action in the sequence of building an army first and establishing a state thereafter.  An army, in its ordinary meaning, is an organized military force equipped for fighting.  It is a group of trained soldiers equipped with weapons to kill and to wound if necessary so as to achieve whatever purposes their commanders direct them to achieve.  D1 and D2 must be well aware that the Central People’s Government and the HKSAR Government would not allow the independence of Hong Kong to occur, and they therefore incited Hong Kong people to build an army so that their goal of independence could be attained through the use of violence.  If independence of Hong Kong were to be achieved by the use of violence, especially through fighting between armed forces, it can be predicted with absolute certainty that bloodshed would result.

54.  It is in this regard that the bauhinia design of the Logo is telling.  The bauhinia in the Logo clearly referred to HKSAR as bauhinia appears in the Regional Flag and Emblem. In the Logo designed by D2, the uneven size and broken edges of the bauhinia petals portrayed a withered bauhinia which clearly signified that Hong Kong was in ruin.  The black color in the background of the Logo clearly signified that Hong Kong was in a dark age.  With these features in mind, the only reasonable and irresistible inference to be drawn was that the red colour on the petals of the bauhinia in the Logo signified bloodshed in Hong Kong.  It was noteworthy that some petals were covered with large patches of red colour which signified that a lot of people were killed or wounded, but there were also red dots over the petals.  These red dots clearly signified that blood was splashing or dripping onto the ground as it appeared in crime scenes after people were killed or wounded.  In my judgment, the Logo clearly conveyed the message that bloodshed would occur over different parts of Hong Kong, and the Logo was a true reflection of the minds of the publishers, i.e. D1 and D2, that they envisaged bloodshed to occur but it was unavoidable for the sake of achieving independence. 

55.  It was also important to note that the Leaflet was designed and distributed after the enactment of the NSL.  This court could take judicial notice that social disorders and riots had frequently occurred prior to the enactment of the NSL, but after the NSL had come into effect at 11 p.m. on 30 June 2020, such social disorders and riots were suppressed.  The Leaflet was designed shortly thereafter in October 2020 and distributed in December 2020.  It was clearly an act in defiance of the NSL.  Building an army to achieve independence of Hong Kong was clearly a measure directed at the NSL, and calling people of Hong Kong to build an army to achieve independence was clearly an incitement to people to take the law into their own hands, which would involve nothing short of unlawful actual violence.

56.  By the same token, even though D1 distributed hardcopies of the Leaflet by leaving them on the parapets of footbridges, in the street and outside shops, and it was not certain who would have read the Leaflet, but given the large number of people who had taken part in the earlier social disorders and/or riots who felt disgruntled with the NSL, and those who were sympathetic with them, the Leaflet could have the effect of inciting these people to use unlawful actual violence again by joining or procuring the building of the army as advocated in the Leaflet. 

57.  It was also crystal clear that D1 intended to build an army to achieve independence of Hong Kong. She said under caution that the propaganda found with her including the Leaflet were her dreams not yet fulfilled.

58.  Having considered the contents of the Leaflet, D1’s intention, and all the circumstances of the case, I find that the prosecution has proved beyond reasonable doubt that the Leaflet had also an intention to incite persons to violence.  Accordingly, D1 was convicted on the basis that all 4 items of the particulars of the charge had been proved against her, and she will be sentenced on this basis.

59.  D2 was also convicted upon his guilty plea and admission of facts.

Criminal record

60.  Both D1 and D2 have a clear record.

Personal and family background

61.  D1 was born on 17 August 1975.  She is now 46 years old.  She is married.  Her family members include her husband, her mother and 3 siblings.  Her father passed away in 2013.  Prior to her arrest, D1 worked as a clerk in IVE and earned about HK$20,000 a month.  Because of the present arrest and remand, she resigned from IVE on 13 July 2021.

62.  D2 was born on 28 March 2004 in Hong Kong.  He is now 17 years old.  He is single.  His father has already passed away.  He now lives with his mother and two elder sisters. He is now a Form 5 student, having repeated Form 4. He had worked as a food delivery worker during summer holiday of 2020.  His mother was a part-time waitress but became unemployed after the outbreak of Covid-19.  His elder sister is unemployed. She is unable to contribute to the family due to the medical expenses she has to spend every month.  The family now relies upon D2’s younger elder sister who works as a jewellery designer with a monthly income of HK$20,000.

Mitigation for D1

63.  Mr Kwan submitted that D1 was a very basic, simple and unsophisticated woman.  She has spent 27 years of her life with IVE.  She had a clear record and is married, living with her husband and very close to her mother.  She was not a member of any political party and has no connection with any political organization in Hong Kong or overseas. 

64.  As to the offence, Mr Kwan submitted that while the conspiracy involved printing, publishing and distribution, etc. of the Leaflet, it was a very unsophisticated conspiracy as evidenced by the facts that the printing and the distribution of the Leaflets were very primitive, and that D1 distributed the Leaflets in one place only, and she had distributed no more than 110 Leaflets.

65.  Mr Kwan also submitted that the only offending parts of the Leaflet were its advocacy for the independence of Hong Kong and the establishment of an army which were inconsistent with the Basic Law.  On the other hand, a number of items in the political structure dreamt of by D1 as stated in the Leaflet was in fact a reflection of the existing reality in Hong Kong, for instance, the official languages, the separation of power, the legal system, and the manner of election, etc. which were just the same or similar.

66.  Mr Kwan submitted that it was not necessary to impose deterrent sentence on D1 to deter her and others from committing seditious acts because of the emerging jurisprudence extending the bail regime under Article 42 of the NSL to the offence of sedition and the consequent presumption against pre-trial bail for this offence.

Mitigation for D2

67.  Mr Leung, the learned counsel for D2, pointed out that D2 was only 16 years old at the time of the offence, and that D2 played a relatively passive role in the offence with the reward he received negligible.  D2 had also indicated his guilty plea to the charge at the earliest opportunity which was an indication that he was genuinely remorseful.  After the offence D2 had already turned a new leaf.  He did not commit any further offence and he managed to change completely in his studying attitude.  Mr Leung stressed that it was unlikely for D2 to commit any criminal offence again.

68.  Mr Leung pointed to the fact that before D2 was granted bail, he had already been remanded in custody for 90 days which might be regarded as a sentence of imprisonment for 4½ months.  He asked this court to take this factor into account when deciding the appropriate sentence to be imposed on D2.

Reasons for sentence

69.  As prescribed in section 10(1) of the Crimes Ordinance, the maximum sentence for the first conviction of the offence is a fine of HK$5,000 and imprisonment for two years.

70.  In HKSAR v Ng Hau Yi Sidney (伍巧怡)[5], the Court of Final Appeal has decided 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.

71.  In the present case, while D1 and D2 were charged and convicted of the offence of conspiracy to print, publish, distribute, display or reproduce seditious publications under section 10(1)(c) of the Crimes Ordinance, it was clear from the facts of this case that they were involved in a conspiracy to incite people to procure the independence of Hong Kong, in other words, to separate the HKSAR from PRC, and by inciting people to build an army to establish an independent state, they were inciting people to violence so as to accomplish their purposes through the use of force.  The offence committed by them was very close to the offence of incitement to secession under Article 21 of the NSL.

72.  In HKSAR v Tong Ying Kit (唐英傑)[6], the Court of First Instance referred to Articles 1 and 12 of the Basic Law of HKSAR and took the view that:-

“any person in the HKSAR who commits secession or carries out any act undermining national unification or inciting other persons to do so must be suitably punished for contravening such fundamental provisions in the Basic Law. Moreover, the punishment must have as its aim a general deterrent effect on the community as a whole, as well as a specific deterrent effect on the individual in question.”

73.  It is clear the same sentencing approach has to be adopted in this case.  The sentence must achieve the purposes of punishment and deterrence, both in its general and specific sense.  I reject Mr Kwan’s submission that since it would be more difficult now to obtain bail for a seditious offence, it was not necessary to impose a deterrent sentence when it comes to the question of sentencing.  Bail and sentencing are two completely different matters.  To achieve the requisite sentencing purposes, it is clear that the only appropriate sentencing option applicable to D1 is a sentence of imprisonment.

74.  Mr Kwan had gone through some overseas and local cases to show the sentence that had previously been imposed on the offenders who had committed seditious offences similar to that presently committed by the defendants.  The overseas cases included a 1939 case from Gold Coast[7], and two 2018 cases from Malaysia[8], and the sentence in each case was a fine with a sentence of imprisonment in default of payment.  Mr Kwan also referred to the New Zealand case of Timothy Selwyn[9] in 2006 and the sentence for publishing a seditious statement was a 2 months’ imprisonment.  I do not find these cases helpful at all because the offence of sedition must be case specific and the local condition played a significant factor.

75.  The only local case that Mr Kwan had referred to is the case of Fei Yi Ming v R[10]. The Appellant was the proprietor and publisher of Ta Kung Pao for seditious publication.  He was sentenced to a fine of HK$4,000, in default 9 months’ imprisonment.  There was no appeal against the sentence.

76.  The authorities cited by Mr Kwan seemed to indicate that fine was the usual penalty, and if imprisonment was to be imposed either on its own as a sentencing option or in default of payment of fine, the prison term was not lengthy.  However, there were previous local cases in which substantial terms of imprisonment were imposed.  These sedition cases occurred at the time when riots broke out in Hong Kong in 1967.

77.  In 1967, sentences of 3 years’ imprisonment were imposed on the proprietors and printers of newspaper for publishing false and seditious news[11]. As to an offender who did not publish seditious publications via the newspaper, Mr Tsang Tak Shing, the former Secretary for Home Affairs of Hong Kong after the Handover, was sentenced to 2 years’ imprisonment when he was an 18-year-old secondary school student for distributing inside the classroom of his school 375 pieces of seditious leaflets condemning the Colonial Government for prohibiting people to become patriotic and condemning the education system for aiming at enslavement of the students[12]. It is unnecessary for me to refer to the facts of these cases any further.  I do not consider these cases helpful to the present sentencing, but the point I wish to make is that the list of cases cited by Mr Kwan was incomplete, and sentence of imprisonment up to 2 years, which was the maximum sentence under the law, had previously been imposed on a young man who distributed the seditious publications on his own inside private premises.  It is not my intention to comment on the appropriateness of the sentence but just to show that the sentencing range for the offence in question can be very wide.

78.  In the present case, as I have already said, the offence committed by the defendants was very close to the offence of incitement to secession under Article 21 of the NSL.  I note the maximum sentence that can be imposed on D1 is two years’ imprisonment.   As against D1 in particular, the facts showed that she was the prime mover of the offence.  She recruited D2 into the conspiracy when D2 was only a 16-year-old Form 4 student, and that she had taken advantage of the naivety of a juvenile or a young man.  She was involved in the printing, production and distribution of hardcopies of the Leaflet, and she intended to produce the effect as particularized in all 4 items of the particulars of the charge, and the intention to incite persons to violence to achieve independence of Hong Kong made the offence particularly serious.  On the other hand, the offence committed by D1 cannot be said to be the worst of its kind.  The scale of distribution was small, and the conspiracy was executed in an amateurish manner.  Having considered all factors, I am of the view that the appropriate starting point of the sentence is one of 18 months’ imprisonment.

79.  As to mitigation, I have considered the mitigation of Mr Kwan and all the matters that had been urged upon me in the 10 mitigation letters submitted to court.  In light of the nature and the gravity of the offence, I find that there is no effective mitigating factor other than D1’s guilty plea.

80.  However, D1 denied that the Leaflet had an intention to incite persons to violence.  A Newton hearing was held and this court made a finding against her.  Mr Kwan submitted that D1 should still be entitled to the usual one-third discount.  In my view, although no live witness had been called, submissions had been made and a ruling had to be made on one of the very important components of the offence committed by D1, and as I have mentioned before, incitement to violence to secure independence of Hong Kong was one of the factors that made her offence serious.  For these reasons, I am of the view that D1 should not be given the usual one-third discount, and the appropriate discount should only be 25% of the starting point.  There is no other factor to reduce the sentence further.

81.  For these reasons, D1 is sentenced to 13½ months’ imprisonment.

82.  As far as D2 is concerned, he committed the offence at the age of 16 and he is now only 17.  He is a young offender but he had committed a very serious offence as I have already explained when I dealt with the sentencing of D1, though I accept that he played a lesser role in the offence than D1.  I am also of the view that his immaturity made him vulnerable to the suggestion of others to commit the offence.  I note that D2 is small in built and has been suffering from asthma since young.  For that reason, he had been subjecting to bullying by others, and I am under the suspicion that he participated in the so-called social events including the commission of the present offence just to establish his self-esteem and his hope to do something big.  If my suspicion is correct, D2 must be advised that he had chosen the wrong path.

83.  In sentencing D2, I have to bear in mind the sentencing considerations as stated by the Court of Appeal in SJ v SHY[13] and SJ v SWS[14].  On the one hand, as a matter of public interest, the sentence to be imposed on D2 should be commensurate with the seriousness of the offence and the circumstances of the case in order to serve the purposes of protection of the public, punishment, open condemnation and deterrence. On the other hand, the young age of an offender is always a mitigating factor and it is in the public interest if a young man can be rehabilitated and reformed so that he will stay away from crimes.

84.  Having considered the facts of this case, in particular the role played by D2 in the offence, and the particular circumstances of D2, I do not regard probation or community service order serves the purposes of sentencing referred to by the Court of Appeal, but detaining D2 in a Rehabilitation Centre for a period so that he will receive the appropriate training and counselling and subject to the aftercare supervision will be beneficial to his rehabilitation and reformation.  I note that D2 has changed a lot after he was released from custody, and that he is more motivated to study than before and has achieved some improvement in his academic performance.  I am sure that if he keeps up with his work, he will be discharged before the commencement of his next academic year and he is still in a position to take part in the DSE examination next year to get a place in the university.

85.  For the reasons explained, D2 is sentenced to Rehabilitation Centre.