HKSAR v. CHEUNG KING SANG KINSON AND OTHERS

CACC 201/2023, [2024] HKCA 1013

On appeal from [2023] HKDC 1463

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 201 OF 2023

(ON APPEAL FROM DCCC NO 917 OF 2021)

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REASONS FOR JUDGMENT

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Hon Poon CJHC (giving the judgment of the Court):

1.  In the proceedings below, the applicants faced two charges. Charge 1 was advocating terrorism, contrary to Article 27 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”). Charge 2, as an alternative charge, was incitement to wound with intent, contrary to common law, section 17(a) of the Offences Against the Persons Ordinance (“OAPO”)[1] and punishable by section 101I of the Criminal Procedure Ordinance (“CPO”).[2] Upon their guilty pleas, which the prosecution accepted, they were convicted of Charge 2 whereupon Charge 1 was dismissed. On 30 October 2023, HH Judge AN Tse Ching (“the Judge”) sentenced each of the applicants to 24 months’ imprisonment.[3] They then applied for leave to appeal against sentence.

2.  At the hearing on 13 September 2024, after hearing counsel, we gave the applicants leave to appeal, and treating the applications as appeals, allowed the appeals and substituted each of their sentences with a 15 months’ imprisonment. We now hand down the reasons for our judgment.

A.  Facts

3.  The facts have been amply stated in the Amended Summary of Facts, which the applicants admitted.[4]  They are summarized below to set the factual matrix for our discussion.

A1.  The Incident

4.  On 1 July 2021, there were online appeals for protests on Hong Kong Island. At around 10:05 pm, a team of uniformed police officers deployed on static positioning in response to such appeals was performing their duty outside SOGO Department Store in Causeway Bay. A man Leung Kin Fai (“Leung”) suddenly approached one of the police officers (“the Police Officer”) from behind and stabbed his left upper back with a sabre knife, inflicting a 10 cm wound and causing him serious injury. When the other police officers tried to subdue him, Leung immediately stepped backwards. He scattered eight USBs, which contained photographs of the sabre knife, a picture of how to conceal the sabre knife with clothing and his “will notes” showing his plot of the attack, his intention to kill himself thereafter and his hostility to the Hong Kong Police Force. He then stabbed his own left chest with the same sabre knife twice and, as a result, died. We will refer to this episode of violence as “the Incident” below.

5.  Immediately after the Incident, the Government between 1 and 6 July 2021 issued statements and press releases to publicly condemn violence and acts undermining public order, characterizing the Incident as a “lone-wolf terrorist attack”. The Incident and the Government’s responses were extensively covered by the media.

A2.  The applicants

6.  The Hong Kong University Students’ Union (“HKUSU”) is the main body of the students’ association in the University of Hong Kong (“HKU”).[5]  Within its structure, the Hong Kong University Students’ Union Council (“HKUSUC”) has the function of, among others, representing members of the HKUSU in such matters that affect their interests. HKUSU, HKUSUC and related entities UNDERGRAD and CAMPUS TV use various online communication and publication media, including Facebook page, website, Instagram, YouTube channel with real-life video publications of meetings and resolutions of the HKUSUC.

7.  At the material times, the applicants were HKU students and members of the HKUSUC. The 1^st applicant was a 2^nd year Bachelor of Social Science (Government and Law) and Bachelor of Laws student. He was the Chairperson of the HKUSUC. The 2^nd applicant was a third year Bachelor of Engineering (Civil Engineering) student. He was the President of the Executive Committee of the HKUSU. The 3^rd applicant was a first year Bachelor of Arts student. He was the representative of Simon KY Lee Hall Students’ Association HKUSU in the HKUSUC. The 4^th applicant was a first year Bachelor of Arts student. He was the representative of the Arts Association HKUSU in the HKUSUC.

A3.  The 3^rd Emergency Meeting

8.  In the small hours of 5 July 2021, the 1^st applicant as Chairperson of the HKUSUC sent emails to the council members and members of the HKUSUC to convene the 3^rd Emergency Council Meeting Session 2021 of the HKUSUC (“the 3^rd Emergency Meeting”), to be held at 7 pm on 7 July 2021 at the designated venue in the HKU. Enclosed with the emails was an agenda of the meeting, the first item of which was “To discuss the death of [Leung]” (“the Agenda Item”). At about 1:55 am on the same day, the same notice of meeting and agenda was posted on the Facebook page of the HKUSUC.

9.  The 3^rd Emergency Meeting was held as scheduled on 7 July 2021 shortly after 7 pm and finished at about 10 pm. The applicants and about 30 members attended. The Meeting was conducted in both Punti and English and was filmed and broadcasted live by CAMPUS TV on its Facebook page and YouTube Channel. The video footage of the 3^rd Emergency Meeting remained online until it was deleted on 16 July 2021.

10.  The 1^st applicant opened the 3^rd Emergency Meeting by inviting “the Union Council to rise and observe a minute of silence as we remember the honourable sacrifice of Mr [Leung], a fellow citizen of Hong Kong on 1 July 2021.”  After discussing other matters for about 6 minutes, the 1^st applicant moved the Agenda Item and invited the 2^nd applicant to speak.

11.  In supporting the Motion (as to which see below), the 2^nd applicant said that the regime had classified Leung’s death as a lone-wolf terrorist attack and all memorial activities as illegal. However, he equated his death to that of another person who fell to his death from Pacific Place during one of the unlawful events in June 2019. He described Leung’s death as a “martyr who sacrificed a lot, including his life, for Hong Kong”. In addition to the one-minute silence observed at the outset of the meeting, he wished to mourn Leung with the Motion and to record the Incident in the history of the HKUSU.

12.  The 1^st applicant then announced that the following motion was received with the 2^nd applicant as proposer and the 3^rd applicant as seconder (“the Motion”):

“… that the Union Council expresses its deep sadness in the death of Mr [Leung], offers its sympathy and condolences to his family and friends, appreciates his sacrifice to Hong Kong.”

13.  After ascertaining that the 3^rd applicant had nothing to say, the 1^st applicant invited the 4^th applicant to speak. Reiterating the importance of the Incident, the 4^th applicant stated that it took place in a year which was so “desperate” and invited members of the HKUSUC to “express their views” on the Incident and the Motion. No other attendees spoke. The 1^st applicant invited those who wished to express their condolences through the Motion to speak and repeated the wording of the Motion. Again, no one spoke. The 1^st applicant then put the Motion to vote, which was passed by a majority of 30 out of 32 in favour with 2 abstentions. The Motion became a resolution of the HKUSUC (“the Resolution”).

14.  Thereafter, the 1^st applicant invited the 3^rd applicant to speak about the Resolution. The 3^rd applicant said:

“… probably this year … when history is distorted, starts to be distorted, (I) hope that everyone will really remember the sacrifice made by martyr Leung for Hong Kong, that is … Just seven days after the Incident, Hong Kong police has begun to use various reasons to stifle Hongkongers’ expression of condolences or some acts of speaking the truth … I hope … every Hongkonger, every student of [HKU] can … at least … the least we can do is to remember the truth and to do as much as possible. That is, probably some memorial activities, also can just do (your) part yourself as a Hongkonger.”

15.  The 4^th applicant then said that there was no discussion of the Motion which was passed as the Resolution because “everyone does not have any argument about this Motion”. Referring to the unlawful events in Hong Kong since June 2019, he asserted that “defeatism and cynicism have pervaded Hong Kong”. He said it was a big shock to learn of the Incident, be it from Facebook, television or news media. He continued: “Some people, even in such a desperate environment, they would make … sacrifice for Hong Kong … sacrifice their own lives …”. Calling himself a coward who could not admit his weakness “under such a huge totalitarian suppression”, he said that Leung, an ordinary citizen and a mere staff of Vitasoy had been characterized by the regime as a terrorist. After referring to President Xi Jinping’s statement on 1 July 2021 at Tiananmen Square calling on the 1.4 billion people to protect the Communist Party, he said those were the “true terrorists” who were “really steeped in blood”. Those regarded as terrorists by the Communist Party were in fact heroes, he asserted. He then expressed “the highest respect for Mr Leung”, who “showed the best side of human nature” by sacrificing his life for “the greater good”.

16.  There being no further comments, the 1^st applicant concluded by asking all members of the HKUSUC to “restrain” their grief. He undertook to try his best “to convey the respect” from the HKUSUC to Leung’s family.

17.  The written text of the Resolution was published and reported in real time and shortly after its passage on the Facebook pages of UNDERGRAD and CAMPUS TV and appeared on the Instagram and the website of UNDERGRAD and CAMPUS TV as well. As at about 12:40 pm on 17 August 2021, the Facebook post of UNDERGRAD covering the Resolution attracted 253 likes, 65 comments and 14 shares. As at about 6:05 pm on 21 July 2021, the Facebook post of CAMPUS TV covering the Resolution attracted 1,253 likes, 110 comments and 108 shares.

18.  The holding of the 3^rd Emergency Meeting and the Resolution were extensively covered by various news media and were all published for public view, particularly between 7 and 9 July 2021.

A4.  Condemnations

19.  The Government swiftly issued public statements to condemn the 3^rd Emergency Meeting and the Resolution and the conduct of those involved including the applicants. The Security Bureau in its statement on 8 July 2021 condemned the HKUSUC for “beautifying” and treating as heroic the blatant violence of Leung who attempted to murder a police officer.

20.  HKU also on 8 July 2021 condemned the Resolution for “glorifying violent attacks”. The HKU’s response was published by UNDERGRAD and CAMPUS TV on their websites and social media platforms.

A5.  The press conference

21.  At about 1 am on 9 July 2021, the 2^nd applicant and other members of the HKUSU Executive Committee held a press conference. The 1^st applicant was not present. The 2^nd applicant read out a letter of apology issued by the HKUSU. He then stated that the Resolution was inappropriate and that the HKUSU did not intend to encourage or promote any illegal or unlawful behavior; and that “as a gesture of apology”, the HKUSUC would withdraw the Resolution and members of the HKUSUC who were present would resign immediately.

22.  The press conference was filmed by CAMPUS TV and was broadcasted live on its Facebook and YouTube platforms. The video footage was still available as at 11 September 2023.

A6.  The 4^th Emergency Meeting

23.  On 10 July 2021 between 6:24 pm and 10:52 pm, the 4^th Emergency Council Meeting of the HKUSUC Session 2021 was held (“the 4^th Emergency Meeting”). It was filmed by CAMPUS TV and broadcasted live on its Facebook and YouTube platforms. The video footage remained online until 16 July 2021 when it was deleted.

24.  The 1^st applicant chaired the 4^th Emergency Meeting while the other applicants were absent. He read out letters from the 3^rd and 4^th applicants. The 3^rd applicant thanked the 1^st and 2^nd applicants and others for all that he had learnt in Session 2021 and wished “HKUSU and our dear city all the best”. The 4^th applicant also thanked the 1^st applicant and stated that he was “sorry for all my inability and cowardice”. The Motion and the Resolution were rescinded.

25.  The 2^nd applicant’s letter of resignation was then read out. He stated that “the ups and downs that we have gone through has made this journey a remarkable one yet with regret”. His resignation from the post of the President of the HKUSU Executive Committee was voted upon and passed as a resolution.

A7.  Arrests

26.  On 18 August 2021, the applicants were arrested for the offence of conspiracy to advocate terrorism.

A8.  Admitting the offence of incitement

27.  Significantly, the applicants admitted that at the time of Charge 2, they jointly and by their individual conduct relating to and during the 3^rd Emergency Meeting unlawfully incited others to unlawfully and maliciously wound officers of the Hong Kong Police Force with intent to do grievous bodily harm to them. They publicly advocated Leung’s wounding of the Police Officer to incite others, including but not limited to HKUSUC members present at the 3^rd Emergency Meeting and persons who had access to the video of that Meeting on the websites, news media and/or social media platforms which were open to the public. They knew that the Incident garnered widespread media publicity and they committed Charge 2 in that context.[6]

B.  Sentencing the applicants

28.  The Judge anchored the reasons for sentence on well-established sentencing principles. She first observed that wounding with intent, which carries a maximum sentence of life imprisonment is an extremely serious offence, and pursuant to section 101I(2) of the CPO, the maximum sentence for incitement to wound with intent is also life imprisonment.[7] She then adopted the sentencing principles for incitement set out by this Court in Secretary for Justice v Poon Yung Wai [2022] 4 HKLRD 1002[8] and also quoted the judgment of the English Court of Appeal in R v Umran Javed in [2008] 2 Cr App R (S) 12.[9]

29.  In rejecting the applicants’ plea to impose a suspended sentence, the Judge ruled that Charge 2 is an excepted offence under Schedule 3 of the CPO.[10]  Even if she were wrong, the present case is much more serious than Poon Yung Wai because of very serious aggravating features. A suspended sentence is wholly unrealistic since any order other than a substantial immediate custodial term would be manifestly inadequate and would send a wrong message to the society.[11]

30.  Counsel for the applicants referred the Judge to several District Court cases in which, according to their submissions, sentences were passed in circumstances similar or identical to the present case. The Judge did not find the exercise useful because those cases were not binding on her and more importantly, as the Court of Appeal repeatedly emphasized, sentences in other similar cases are of limited guidance.[12]

31.  The Judge went on to deal with the role and culpability of each of the applicants.[13]  She then discussed a host of aggravating features under different headings: committing the offence with others; premeditation; the modus operandi and formality; abuse of power; open defiance of the law; impact; target; means of publication.[14]  She accepted that the incitement was not worded in explicit terms but in light of the aggravating features, the appropriate starting point was one of 35 months’ imprisonment.[15]

32.  Turning to mitigation, the Judge considered in length counsel’s submissions on the appropriate discount to be given for the applicants’ guilty pleas based on the guidance laid down by this Court (differently constituted) in HKSAR v Ngo Van Nam [2016] 5 HKLRD 1.[16]  After going through the procedural history and for the reasons that she gave, she concluded that the applicants had decided to give an indication of a guilty plea to Charge 2 at a very late stage of the proceedings. By then, most of the preparation for trial was complete and substantial amount of time and resources had already been expended. In the circumstances, she gave a discount of 20%, which is the lowest of the applicable range of discount (25% to 20%).[17]

33.  The Judge went through other mitigating factors: the applicants’ personal background; academic achievements; clear record; remorse, family circumstances; the 4^th applicant’s medical condition; impact of social conditions; conduct after arrest; youth; and retraction.[18]  In conclusion, the Judge applied the 20% discount to the starting point of 35 months’ imprisonment, thereby arriving at 28 months’ imprisonment. After reducing it further by 4 months on account of the applicants’ youth and renunciation of the Motion and Resolution, the Judge sentenced each of the applicants to 24 months’ imprisonment.[19]

C.  Grounds of appeal

34.  The 1^st applicant raised two grounds of appeal:

(1)  The Judge wrongly concluded that there were very serious aggravating factors. In assessing the gravity of the case, she misunderstood much of the evidence, did not properly take into account matters favourable to the applicants and wrongly drew adverse inference against them.

(2)  The starting point of 35 months’ imprisonment and, in all the circumstances, the ultimate sentence of 24 months’ imprisonment is manifestly excessive.

Mr Robert Pang SC for the 1^st applicant[20] invited the Court to replace the sentence imposed by the Judge with a short term of imprisonment, which would have sufficient deterrent effect, but at the same time reflected his culpability appropriately.

35.  The 2^nd applicant raised three grounds of appeal:

(1)  The Judge did not take into account or properly consider the overall circumstances leading to his guilty plea in applying 20% discount. The overall sentence was therefore wrong in principle or manifestly excessive.

(2)  The aggravating factors identified by the Judge were not supported by any proper factual basis, resulting in a manifestly excessive starting point and sentence.

(3)  The Judge’s finding that the 2^nd applicant’s remorse was shallow and his apology/retraction was of little mitigation value is based on an incomplete understanding of his mitigation letter and an unfair assessment of the circumstances of the public apology, making the sentence manifestly excessive.

Mr Kay Chan for the 2^nd applicant asked the Court to give 25% discount for his guilty plea and a further 6 months’ reduction for other mitigating factors.

36.  The 3^rd and 4^th applicants initially raised five grounds of appeal. The first two concerned the Judge’s refusal to suspend the sentence. Their counsel, Mr Steven Kwan, applied to withdraw them at the outset of the hearing on 13 September 2024. He accepted, rightly in our view, that pursuant to section 101C(1)(b)(iv) of the CPO,[21] a statutory reference to the offence of wounding with intent includes an incitement to commit that offence. Since wounding with intent is an excepted offence in Schedule 3 of the CPO, it follows that incitement to wound with intent is also an excepted offence.

37.  The remaining three grounds of appeal raised by the 3^rd and 4^th applicants contended that:

(1)  Charge 2 is an indirect and oblique incitement, which is less culpable than a direct incitement. However, the Judge erred in not drawing that distinction, which amounts to a failure to take in account a relevant factor in determining the gravity of the offence.

(2)  The Judge failed to give weight to the fact that where an indirect and oblique incitement failed to evoke a criminal response, the harm flowing from the incitement lies merely in the risk of the predicate crime being committed.

(3)  The starting point of 35 months was, for the above grounds, manifestly excessive.

Mr Steven Kwan for the 3^rd and 4^th applicants asked the Court to consider a shorter imprisonment term which would allow them to be released either immediately or in the near future.

D.  Discussion

38.  As seen, counsel for all the applicants now accepted that Charge 2 warranted an immediate custodial sentence. They only disputed its length. Although counsel’s submissions differed in terms of emphasis, their common contention in substance was that the starting point of 35 months adopted by the Judge was manifestly excessive.

D1.  Starting point

D1.1  Sentencing principles

39.  Incitement to wound with intent is a serious offence. Its maximum sentence is life imprisonment, which is the same as the predicate offence of wounding with intent, pursuant to section 101I of the CPO read together with section 17 of the OAPO. The offence aims at preventing people from persuading or encouraging others to wound with intent, even if no one so persuaded or encouraged did it; and allowing intervention as early as possible to stop the incited from doing it: see Poon Yung Wai, at [34]. The offence is completed once the incitement is made, irrespective of whether the actual crime is carried out or attempted. Its objective is to protect the public from the serious risks of the offence of wounding with intent. To achieve those purposes, imposition of sentences intended to provide both punishment and deterrence must follow.

40.  In evaluating the seriousness of such an inchoate offence in a given case, it is material to have regard to all the circumstances including but not limited to:

(1)  the context in which the offence was committed, which is often said to be an essential feature in the assessment of culpability;

(2)  the offender’s role, extent and nature of involvement;

(3)  the offender’s motive or intention;

(4)  the means of the incitement;

(5)  the period of time covered by the incitement;

(6)  whether there was any premeditation;

(7)  the sophistication, skill and industry devoted to the incitement;

(8)  how far advanced the incitement was;

(9)  who the targeted incitees were;

(10)  who the targets of the predicate offence of wounding with intent were;

(11)  the connection between the offender’s acts and any possible crime further down the line, including copycat crime;

(12)  the likelihood that the incitement would lead others to commit wounding with intent, or may have even done so.

D1.2  The present case

41.  Turning to the present case, the following features are pertinent to the evaluation of the applicants’ culpability. They all support a starting point the length of which must provide a sufficient degree of punishment and deterrence.

42.  First, as the Court of Final Appeal observed in Kwok Wing Hang v Chief Executive in Council (2020) 23 HKCFAR 518, at [1], Hong Kong had been experiencing an exceptional and sustained outbreak of violent public lawlessness since June 2019. Hong Kong was then in an unprecedented dire situation. It eventually led to the enactment of the NSL applied to the HKSAR on 30 June 2020. On 1 July 2021, there were online calls for protests on the Hong Kong Island. Although the risks of public protests, especially those unauthorized, turning into mass violence, might appear to be less imminent than in the past, what Hong Kong experienced just a couple of years ago clearly suggested that they could not be ignored. It was against this background that police was deployed to maintain public order outside SOGO Department Store where the Incident sadly took place. And as the applicants admitted, they committed Charge 2 just a few days after the widespread media publicity of the Incident.

43.  Inciting others to wound the police with intent is already bad enough. It was even worse in the context described above. It might again arouse anti-police sentiments, which at times ran high among some quarters of society during the peak of social turmoil. Some might be encouraged or even emboldened to cause harm to the police. Moreover, targeting the police, who are instrumental to maintaining law and order, would seriously undermine their efforts to tackle potential threats to public order. In all, as the Judge observed,[22] the applicants’ incitement gave rise to risks of reviving the violent social unrests at great costs to Hong Kong.

44.  Second, the applicants glorified Leung’s savage attack on the Police Officer and his suicide as an honourable sacrifice for Hong Kong, something to be highly respected and worthy of remembrance as a matter of history and formal record of the HKUSUC, in open defiance of the public condemnations by the Government. Although the incitement was indirect, which the Judge acknowledged,[23] we reject Mr Kwan’s contention that it was less serious than a direct incitement. The gravity of an incitement depends on its substance and context, not its form. Glorifying violence in the way the applicants did carried the implicit message that resorting to violence against the police, even at the cost of one’s own life, was an honourable course to take to achieve one’s political objectives. Such a dangerous, radical, if not fanatic, idea has to be firmly rejected and cannot be allowed to take root in any civilized society including Hong Kong. That said, we accepted that the incitement was a one-off incident, which did not last long or involve any repeated incitements such as a series of lecturing or preaching or indoctrination. On the evidence, the likelihood that the incitement would lead others to commit wounding with intent did not appear to be very high.

45.  Third, on the admitted facts and contrary to counsel’s submissions, the Judge was entitled to draw the inference that there was a degree of premeditation with the applicants playing different roles at the 3^rd Emergency Meeting. However, we accepted that it did not involve a high degree of sophistication, skill or industry.

46.  Fourth, the applicants were student leaders. They committed the offence in their official capacity which they held in the HKUSUC. Their conduct at the 3^rd Emergency Meeting including in particular the passing of the Resolution purported to represent the official stance of the HKUSUC to endorse sheer violence against the police.

47.  The Judge took the view that the Incident had nothing to do with the functions or business of the HKUSUC and the applicants’ decision to use the 3^rd Emergency Meeting as a channel of the incitement was an abuse of power.[24]  However, according to Section II in Article 2 of the Constitution of the HKUSU, one of its aims is “to identify the student body with social issues in the interests of the people of Hong Kong”. That provision covered the Incident. Depending on the actual circumstances, discussion of the Incident at the 3^rd Emergency Meeting per se would have been quite legitimate but for the applicants’ incitement.

48.  Fifth, the 3^rd Emergency Meeting was broadcasted live via the social media platforms of the HKUSUC and its related entities. As has been repeatedly emphasized, inciting others by means of online social media is an aggravating factor: see Poon Yung Wai, at [40].

49.  Referring to the 2^nd applicant’s admission at the press conference that the Resolution attracted international interest, the Judge said that there was an international element which was a serious aggravating factor.[25]  However, since Charge 2 aimed at local people with the police as target, the Judge seemed to have placed too much weight on this feature.

50.  Sixth, the primary audience of the incitement was evidently the students of the HKU. In fact, the applicants admitted that they incited, among others, HKUSUC members present at the 3^rd Emergency Meeting. Inciting students to wound the police with intent was an aggravating factor: see Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 657, at [163].

51.  Having evaluated the applicants’ overall culpability and bearing in mind the differences we had with the Judge’s assessment as highlighted above, we concluded that the starting point of 35 months adopted by her was too high. A proper starting point should be 24 months instead.

52.  That being our conclusion, it is not necessary for us to dwell on counsel’s other submissions on the starting point save and except this. Mr Pang argued that the applicants’ subsequent apology and retraction of the Motion and the Resolution should be considered in the determination of the starting point rather than as mitigation. We respectfully disagree. The apology and retraction were the applicants’ post-offence conduct, tending to show their remorse. They should be properly dealt with as mitigation.

D2.  Discount on guilty plea

53.  This ground was only pursued by Mr Chan for the 2^nd applicant.

54.  The procedural chronology leading to the 2^nd applicant’s guilty plea to Charge 2 is set out below:

Date	Event
07/07/2021	Date of offence
18/08/2021	A2 was arrested for Charge 1
19/08/2021	Charge 2 was laid against A2
29/04/2022	The District Court handed down the sentencing decision in HKSAR v Lui Sai Yu [2022] HKDC 384
30/11/2022	The Court of Appeal handed down the judgment in HKSAR v Lui Sai Yu [2022] HKCA 1780, holding that guilty plea is not applicable for sentencing reduction for a serious NSL 21 offence
06/12/2022	A2 indicated a not guilty plea, with PTR fixed and trial set down
27/04/2023	The Court of Appeal granted a certificate of points of law of great and general importance in HKSAR v Lui Sai Yu [2023] HKCA 611 regarding the minimum sentence under NSL
05/07/2023	A2 indicated to the court that he would plead guilty to Charge 1
19/07/2023	A2 indicated to the court that he would withdraw his indication to plead guilty to Charge 1
20/07/2023	1st PTR where A2 withdrew his indication of guilty plea, A2’s legal team ceased to act and A2 maintained his not guilty plea
27/07/2023	Legal aid certificate for new legal team granted
09/08/2023	A2 offered to plead guilty to Charge 2 and the offer was accepted by the prosecution
15/08/2023	Letter written to court by A2’s legal team informing the court of A2’s intended guilty plea to Charge 2
22/08/2023	The Court of Final Appeal in HKSAR v Lui Sai Yu [2023] HKCFA 26 held that the stipulation of “fixed-term imprisonment of not less than five years” in NSL21 for offences of a serious nature is mandatory
24/08/2023	2nd PTR where A2 confirmed that he would plead guilty to Charge 2
11/09/2023	A2 pleaded guilty to Charge 2

55.  Mr Chan argued that Charge 1 was a novel offence involving uncertainty in the definition of “advocating”. It carries a maximum imprisonment sentence of 10 years and a minimum of not less than 5 years. Charge 2, however, carries a maximum sentence of life imprisonment, which is unusual as an alternative charge. The 2^nd applicant needed time to take legal advice. Initially he offered to plead guilty to Charge 1 but withdrew it after his legal team changed. The uncertainty pertaining to the minimum sentence regime in the NSL was finally resolved after the Court of Final Appeal handed down its judgment in Lui Sai Yu on 22 August 2023. Under these special circumstances, the 2^nd applicant should not be criticized for the time taken in considering and indicating his guilty plea to Charge 2. The Judge therefore erred in only giving him a 20% discount.

56.  Mr Chan placed much reliance on the uncertainty surrounding the minimum sentence regime in the NSL, which was only settled after the Court of Final Appeal handed down its judgment in Lui Sai Yu on 22 August 2023. However, such reliance was misplaced because the 2^nd applicant informed the court that he would plead guilty to Charge 1 on 5 July 2023, albeit that it was withdrawn soon after. As regards Charge 2, it was clear to the 2^nd applicant what acts he had committed and it was not difficult to give a professional assessment of the likely sentence. In the circumstances, given that it was not a timely plea, we do not see how the Judge could be criticised for exercising her discretion in only giving a 20% discount.

D3.  Further discount on other mitigating factors

57.  The Judge was fully aware of all the mitigating factors advanced on behalf of the applicants, including their personal background, academic achievements, remorse, youth and retraction. It is entirely a matter of discretion for her to give further discount, if any, on any of those additional mitigating factors. Eventually, she gave 4 months because of the applicants’ youth and retraction, which is not insubstantial in the overall sentence. In arguing that they should be entitled to more discount, the applicants must first convince us that the Judge erred in the exercise of her discretion. But we are not so satisfied.

58.  As to the applicants’ youth, it is a generally recognised mitigating factor at the sentencing judge’s discretion. On their apology and retraction, as evidence of remorse, it is normally subsumed in the discount for guilty plea already: see Ngo Van Nam at [200]. The Judge could give further discount on remorse in exceptional circumstances as a matter of discretion. The extent of reduction for both matters was a matter for the Judge. We could not see any ground for interfering with her decision to give a further total 4 months’ discount.

59.  As to the other mitigating factors, they paled into insignificance in face of an offence as serious as Charge 2. Any criticism that the Judge failed to give any further discount for any of them must fail.

E.  Conclusion

60.  In consequence, we would only disturb the starting point adopted by the Judge and uphold all the other aspects of the sentence. It follows that the proper sentence should start with 24 months, to be discounted by 20%, further reduced by 4 months and rounded up to 15 months’ imprisonment. We accordingly made the order as set out at [2] above.