HKSAR v. YEUNG SUET YING CLARISSE AND OTHERS

Press Summary (English)

Press Summary (Chinese)

CACC 253/2024, [2026] HKCA 1396

On appeal from [2024] HKCFI 1468 & [2024] HKCFI 3298

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 253 OF 2024

(ON APPEAL FROM HCCC NO 69 OF 2022)

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D E C I S I O N

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The Court:

Introduction

1.  By a judgment handed down on 23 February 2026 (“Judgment”),[1] the Court of Appeal [2] refused to grant leave to D5, D8, D14, D17, D33, D36, D37, D38, D41 and D47, and leave out of time to D10, to appeal against conviction and dismiss their appeals in CACC 253/2024.[3] We will refer to them as the applicants below.

2.  The applicants now apply for a certificate that points of law of great and general importance raised by them in their respective notices of motion are involved in the Judgment, pursuant to section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap 484.[4]  Their applications are opposed by the respondent.

Judgment

3.  At [45] of the Judgment, the Court distilled five broad common grounds of appeal. In Part C, the Court discussed the 1^st to 3^rd Common Grounds and identified at [48] the issue of construction raised: what is the proper meaning of “other unlawful means” in NSL 22? Applying the contextual and purposive construction, the Court held that on a proper construction, “other unlawful means” in NSL 22 covers “acts not just by the use of force or the threat of force, but also other unlawful means.”[5]

4.  The Court rejected the applicants’ arguments (1) the ejusdem generis rule applies to the construction of “other unlawful means” in NSL 22 so that it is confined to “the use of force or the threat of force”;[6] and (2) that “other unlawful means” is confined to criminal acts.[7]

5.  At [98] of the Judgment, the Court identified four principal issues raised by the 4^th and 5^th Common Grounds:

(1)  whether the Scheme constitutes an unlawful means within the meaning of NSL 22;

(2)  whether the Course of Conduct is a prohibited act within the meaning of NSL 22(3);

(3)  whether the non-intervention principle applies; and

(4)  what the specific intent to subvert the State power for the present offence entails.

6.  After examining the constitutional order of the HKSAR, the constitutional functions of the LegCo, and highlighting the constitutional duty of LegCo members to uphold the Basic Law in performing their functions,[8] the Court held that the Scheme is an unlawful means;[9] that the Course of Conduct is a prohibited act;[10] that the non-intervention principle does not apply;[11] and that an accused will have the specific subversive intent if he intends to trigger the mechanism to bring about the consequences in BL 50 ‑ 52 with the purpose of the Scheme and the Course of Conduct in mind.[12]

Points raised by the applicants

7.  Since the applicants are separately represented, the points raised by them inevitably vary in terms of formulation but for present purposes may be categorized into five broad points:

(1)  what is the proper construction of “other unlawful means” in NSL 22;

(2)  whether the triggering of the mechanism under BL 50 ‑ 52 constitutes “other unlawful means” within the meaning of NSL 22;

(3)  what are the constitutional duties, powers and functions of LegCo members, and whether the Course of Conduct is a prohibited act within the meaning of NSL 22(3);

(4)  whether the principle of non-intervention is applicable;

(5)  whether the intention to trigger the mechanism under BL 50 ‑ 52 constitutes the specific intent to subvert the State power under NSL 22.

It can be readily seen that these points largely mirror their grounds of appeal but some of them appear to have been couched without sufficient regard to the factual context of the present case and the Court’s findings on those matters in the Judgment.

Our certification

8.  Having read the parties’ written submissions, we consider the main issues involved in the Judgment, repeated at [3] and [5] above, are of great and general importance. They touch upon the elements of a NSL 22 offence, both in terms of actus reus and mens rea, and the duties of LegCo members in performing their constitutional functions, especially in connection with the examination of budgets and the invocation of the mechanism in BL 50 – 52. They merit the consideration by the Court of Final Appeal, in particular when it is the first occasion they are to be determined by our apex Court.

9.  We will accordingly certify the following questions under section 32(2) of the Hong Kong Court of Final Appeal Ordinance:

(1)  On a proper construction, what is the meaning of “other unlawful means” in NSL 22, in particular:

(a)  whether the ejusdem generis rule applies so that it is confined to “acts by force or threat of force”; and

(b)  whether it is confined to criminal acts.

(2)  Whether the Scheme constitutes an unlawful means within the meaning of NSL 22;

(3)  Whether the Course of Conduct is a prohibited act within the meaning of NSL 22(3);

(4)  Whether the non-intervention principle applies in the present case;

(5)  Whether an accused will have the specific subversive intent if he intends to trigger the mechanism to bring about the consequences in BL 50 ‑ 52 with the purpose of the Scheme and the Course of Conduct in mind.