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Press Summary (English)
Press Summary (Chinese)
CACC 253/2024,
CACC 263/2024 &
CACC 268/2024
(Heard together)
[2026] HKCA 284
On appeal from [2024] HKCFI 1468 & [2024] HKCFI 3298
CACC 253/2024
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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BETWEEN
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HKSAR |
Respondent |
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and |
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YEUNG Suet-ying Clarisse (楊雪盈) |
1st Applicant (D10) |
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WONG Pik-wan (黃碧雲) |
2nd Applicant (D17) |
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CHOW Ka-shing (鄒家成) |
3rd Applicant (D37) |
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YU Wai-ming Winnie (余慧明) |
4th Applicant (D47) |
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HO Kwai-lam (何桂藍) |
5th Applicant (D33) |
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LAM Cheuk-ting (林卓廷) |
6th Applicant (D38) |
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NG Gordon Ching-hang (吳政亨) |
7th Applicant (D5) |
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PANG Cheuk-kei (彭卓棋) |
8th Applicant (D11) |
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CHENG Tat-hung (鄭達鴻) |
9th Applicant (D8) |
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HO Kai-ming Kalvin (何啟明) |
10th Applicant (D14) |
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CHAN Chi-chuen Raymond (陳志全) |
11th Applicant (D36) |
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LEUNG Kwok-hung (梁國雄) |
12th Applicant (D41) |
__________________
CACC 263/2024
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 263 OF 2024
(ON APPEAL FROM HCCC NO 70 OF 2022)
_________________
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BETWEEN
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HKSAR |
Respondent |
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and |
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WONG Ji-yuet (黃子悅) |
Applicant (D27) |
__________________
CACC 268/2024
IN THE HIGH COURT OF THE
HONG KONG SPECIAL ADMINISTRATIVE REGION
COURT OF APPEAL
CRIMINAL APPEAL NO 268 OF 2024
(ON APPEAL FROM HCCC NO 69 OF 2022)
_________________
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BETWEEN
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Secretary for Justice |
Appellant |
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and |
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LAU Wai-chung (劉偉聰) |
Respondent (D16) |
_________________
(Heard Together)
| Before: |
Hon Poon CJHC, Pang JA and Anthea Pang JA in Court |
| Dates of Hearing: |
14 to 17 July 2025 |
| Date of Judgment: |
23 February 2026 |
_____________________
J U D G M E N T
_____________________
The Court:
Table of Contents
Part I – Introduction
1. Article 22 of the National Security Law (“NSL”)[1] creates the offence of subversion by stipulating:
“A person who organizes, plans, commits or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence:
(1) overthrowing or undermining the basic system of the People’s Republic of China (‘PRC’) established by the Constitution of the People’s Republic of China (‘Constitution’);
(2) overthrowing the body of central power of the [PRC] or the body of power of the Hong Kong Special Administrative Region (‘HKSAR’);
(3) seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of central power of the [PRC] or the body of power of the [HKSAR]; or
(4) attacking or damaging the premises and facilities used by the body of power of the [HKSAR] to perform its duties and functions, rendering it incapable of performing its normal duties and functions. …”
A person who is a principal offender or a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; a person who actively participates in the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction.”
2. In the proceedings below, 47 defendants were charged with one count of conspiracy to commit subversion, contrary to NSL 22(3) and sections 159A and 159C of the Crimes Ordinance.[2] The particulars of the charge aver that between 1 July 2020 and 7 January 2021, they conspired with others, with a view to subvert the State power, to organize, plan, commit or participate in, by threat of force or other unlawful means, namely:
“(i) advocating, engaging or participating in a scheme with a view to abusing his or her powers and functions entrusted under Article 73 of the Basic Law[3] (‘BL 73’) after being elected to be a member of the Legislative Council (‘LegCo’) for the purposes of:
(a) obtaining a controlling majority in the LegCo to indiscriminately refuse to pass any budgets or public expenditure to be introduced by the HKSAR Government (‘the Government’) regardless of their contents or the merits of their contents;
(b) compelling the Chief Executive of HKSAR (‘Chief Executive’) to dissolve the LegCo under Article 50 of the Basic Law (‘BL 50’) so as to paralyze the operations of the Government;
(c) ultimately causing the Chief Executive to resign under Article 52 of the Basic Law (‘BL 52’) entailed by the dissolution of the LegCo and the refusal to pass the original budget by the new LegCo;
(‘the Scheme’)
(ii) with a view to carrying out the Scheme, to stand or not to stand as candidates in the LegCo Election (‘the Election’), and/or inciting, procuring, inducing or causing others to stand or not to stand as candidates in the Election;
(iii) undertaking or agreeing, and/or inciting, procuring, inducing or causing others to undertake or agree, to exercise or forbear to exercise his or her powers and functions under BL 73 after being elected as a LegCo member when examining and approving budgets or public expenditure to be introduced by the Government in accordance with the Scheme;
(iv) undertaking or agreeing, and/or inciting, procuring, inducing or causing others to undertake or agree, to willfully or intentionally fail or neglect to discharge his or her duties of a LegCo member after being elected in the Election, that is, to uphold the Basic Law, bear allegiance to the HKSAR and serve the HKSAR conscientiously, dutifully, in full accordance with the law, honestly and with integrity;”
seriously interfering in, disrupting or undermining the performance of duties and functions in accordance with the law by the body of power of the HKSAR.
3. Thirty-one of the 47 defendants pleaded guilty and were convicted accordingly.[4] The remaining sixteen denied the charge and stood trial before the Trial Court,[5] which lasted for 118 days spanning between February and December 2023. On 30 May 2024, the Trial Court convicted all of them except D16 and D46.[6] On 19 November 2024, the Trial Court imposed different terms of imprisonment on all the 45 convicted defendants, ranging from 4 years and 2 months to 10 years.[7]
4. Before this Court are:
(1) CACC 253/2024: appeals on questions of law alone and applications for leave to appeal against conviction by D5, D8, D14, D17, D33, D36 to D38, D41 and D47, and an application for leave to appeal against conviction out of time by D10;[8] and applications for leave to appeal against sentence by the above defendants except D33;[9]
(2) CACC 263/2024: an application for leave to appeal against sentence by D27, one of the defendants who pleaded guilty;[10] and
(3) CACC 268/2024: the case stated by the Secretary for Justice (“SJ”) against the Trial Court’s acquittal of D16.
5. The conviction appeals and the leave applications for conviction, considered in Part II, raise important issues regarding the elements of a NSL 22 offence, and the interplay between NSL 22(3) and BL 50 ‑ 52 and 73(2) in the specific factual matrix of this case. The leave applications for sentence, discussed in Part III, concern the categorization of the applicants as active participants, the starting points adopted and the weight given to their mitigating circumstances by the Trial Court. The case stated, covered in Part IV, examines if the Trial Court’s findings that D16 was not a party to the conspiracy and that he did not have the intent to subvert are perverse.
Part II – CACC 253/2024 (Conviction)
A. Proceedings below
A1. Prosecution case in a gist
6. In November 2019, the pan-democratic camp won a huge victory in the District Council election. Seeking to capitalize on it, D1 in January 2020 came up with Project 35+ (“the Project”). Put simply, the Project aimed at firstly gaining a majority of LegCo by the pan-democratic camp in the upcoming LegCo Election, scheduled to be held in September 2020, through coordination among the candidates and a Primary Election.[11] Next, after attaining the majority, they would use the power under BL 50 to veto budgets indiscriminately as a means to compel the Government to respond to the “Five Demands, Not One Less” (“Five Demands”), failing which, the Chief Executive would have to dissolve the LegCo under BL 50 and ultimately resign under BL 52.
7. D1 to D4 were the organizers of the Primary Election held in July 2020 whereas D6 to D47 were the candidates. D5 was neither an organizer nor a candidate. He in March 2020 launched the “三投三不投” “Say No to Primary Dodgers” Campaign (“the Campaign”) to support the Project, which continued after September 2020.
8. The prosecution alleged that the defendants and other persons agreed to pursue the Scheme (“the Course of Conduct”) before the promulgation of the NSL on 30 June 2020 and continued to do so thereafter. Had the 2020 LegCo Election not been postponed because of COVID-19 on 31 July 2020 and the defendants not been arrested in early January 2021, the Course of Conduct would have been carried out with the effect of paralyzing the operations of the Government and inevitably creating political instability in the HKSAR leading to a constitutional crisis. The Course of Conduct, if carried out in accordance with the conspirators’ intention, would necessarily amount to or involve subversion under NSL 22(3).
A2. Rulings on legal issues
9. The defendants raised various legal issues regarding the construction of NSL 22 and the elements of the offence. All their submissions were rejected by the Trial Court.
10. On the construction of NSL 22, the Trial Court ruled that:
(1) The ejusdem generis rule of statutory interpretation does not apply to the construction of “other unlawful means” in NSL 22 to limit it to other acts committed with force or threat of force only. The term covers all other unlawful means.
(2) Nor the term “other unlawful means” is confined to criminal offences but it encompasses any unlawful means.
(3) Knowledge of the unlawfulness of the means adopted is not a requisite mental element of a NSL 22 offence.
11. In relation to the elements of the offence, the Trial Court held that:
(1) The performance of duties and functions in accordance with law by the body of power of the HKSAR referred to in NSL 22(3) is an aspect of the State power that it seeks to protect. A serious interference in, disruption or undermining of the same is tantamount to subversion if it is done with the specific intent of subverting the State power.
(2) A deliberate refusal by the majority of the LegCo members to examine the budgets regardless of their contents and merits is a clear breach of constitutional duties under BL 73 and NSL 3. A premediated plan to veto budgets indiscriminately with a view to forcing the Government to accede to certain political agenda amounted to an abuse of power. Parliamentary privilege in such context does not apply.
(3) If implemented, the Scheme would necessarily result in “serious interference in, disruption or undermining of the performance of duties and functions in accordance with the law by the body of power of the HKSAR”, leading to a constitutional crisis.
(4) The impossibility argument advanced by the defence is a factual impossibility of carrying out the Scheme into effect. It is not a defence to conspiracy, which is made out even if the Scheme is objectively impossible to succeed.
A3. Primary facts
12. In terms of evidence, the prosecution proceeded on admitted facts; video evidence including footages of meetings, press conferences, rallies and campaign forums; documentary evidence including newspaper articles and campaign materials; posts on social media; documents found in the defendants’ electronic devices. The prosecution also called 14 witnesses, including three immunized witnesses, D2 (PW1), D3 (PW2) and D4 (PW3).[12] Much of the evidence adduced by the prosecution was not in dispute. The major events may be summarized as follows.
13. After the District Council election, D1 in December 2019 published an article in Apple Daily entitled “Capturing a LegCo majority as an important step toward genuine universal suffrage”, floating his idea of gaining a majority in the upcoming LegCo Election. He also mentioned that the LegCo could use its fiscal power to meet genuine public needs without, however, giving any specific details. His article drew attention of the pan-democratic camp who were exploring ways to win the LegCo Election.
14. In early January 2020, D1, D2 and some leading figures of the pan-democratic camp met (“the January Meeting”). According to D2, the pan-democratic camp made up of parties and activists across a wide political spectrum, ranging from traditional democratic parties to radicals and localists, and included the Democratic Party (“DP”), the Civic Party (“CP”), the Labour Party (“LP”), the Association for Democracy and People’s Livelihood (“ADPL”), the Neighbourhood and Worker’s Service Centre and the League of Social Democrats (“LSD”). The leading figures who attended the January Meeting were Wong Ho-ming of the LSD, Lee Wing-tat of the DP and Lee Cheuk-yan of the LP. D1 explained to them his ideas of how to gain a majority in the LegCo Election and to achieve the “Five Demands”; and how to use the LegCo’s fiscal power to veto budges once a majority was obtained, which he described as creating “a constitutional weapon of mass destruction”. By that, D1 meant the vetoing of a budget twice to cause the dissolution of the LegCo and compel the Chief Executive to step down.
15. At D1’s proposal, the January Meeting agreed that a coordination mechanism would be set up within the pan-democratic camp, to ensure minimum wastage of votes and maximum number of candidates being elected, with the hope of attaining a majority. As part of the mechanism, the Primary Election, as opposed to an opinion poll, would be held to determine a priority list of candidates who would stand for the LegCo Election. The administrative work of the Primary Election would be handled by the Power for Democracy (“PfD”), which had done similar work before.[13] D2 agreed to coordinate and work with D1 to carry out the Primary Election.
16. After the January Meeting, D1 and D2 promoted the Project as organizers. D1 was the brain driving it while D2, given his experience in electioneering work, was in charge of liaison and coordination. They approached various political organizations and individuals in February and March 2020, beginning with the Civic Party. D2 also contacted D3 and D4, the Convener and Deputy Convener of PfD respectively, who agreed to help with the administration and logistic work.
17. In March and April 2020, D1 published numerous articles in newspapers to promote the Project and advocate his idea of the LegCo exercising the veto power as a means to compel the Chief Executive to accede to the Five Demands:
(1) “Going up and down together Target 35+” (齊上齊落 目標35+) (10 March 2020), stressing that the pan-democratic camp would have sufficient votes to veto bills, budgets and applications for appropriation after obtaining 35+.
(2) “A LegCo majority is a constitutional weapon of mass destruction” (立會過半是大殺傷力憲制武器) (31 March 2020), expressing for the first time on newspapers, the purpose of achieving a majority and vetoing the budgets was to acquire a “constitutional weapon of mass destruction” in destabilizing the existing political system. The political consequences such as the dissolution of the LegCo and the resignation of the Chief Executive after the budgets being vetoed were also mentioned.
(3) “The definition and timing of mutual destruction” (攬炒的定義和時間) (14 April 2020), detailing D1’s concept of mutual destruction.
(4) “The epochal significance of mutual destruction” (攬炒的時代意義) (21 April 2020), detailing the concept of mutual destruction as “grabbing half of the seats in the LegCo and then casting a veto on the budget, with the purpose of finally shutting down the Government, forcing the Communist Party of China (“CPC”) to dissolve the LegCo, establish a provisional LegCo and then actually declare the end of ‘one country, two systems’”.
(5) “Ten steps to real mutual destruction; this is the fate of Hong Kong” (真攬炒十步 這是香港宿命)(28 April 2020), setting out the actions and the time tables (between July 2020 and December 2021) for taking the 10 steps to mutual destruction.
18. As it gradually emerged, the main thrust of D1’s articles was that by gaining a majority in the LegCo the pan-democratic camp could harness the power to veto budgets with the aim of causing the Chief Executive to dissolve the LegCo and, eventually, step down; thus paralyzing the HKSAR Government, and forcing the Central People’s Government of the PRC (“CPG”) to declare the end of the “one country, two systems” policy. In D1’s words, that was the plan of “mutual destruction”.
19. At a press conference on 26 March 2020 which he called, D1 repeated the point that the purpose of the Project was to use vetoing the budgets by the majority in the LegCo as a means to acquire “a lethal constitutional weapon” to increase the resistance against the Government.
20. Separately, D5 on 19 March 2020 initiated the Campaign, calling upon all voters to sign a petition on the Campaign’s website. The petition contained undertakings to vote in the Primary Election and the LegCo Election, to vote for those candidates who had won the Primary Election and not those who did not (1) support the holding of the Primary Election; (2) partake in the Primary Election; or (3) abide by the results of the Primary Election. D5 promoted the Campaign on different social media platforms and media outlets. Using the pseudonym “李伯盧” (Lee Bak Lou), D5 wrote articles and published posts to promote the Campaign. The Campaign continued at least up to September 2020.
21. On 25 March 2020, the chairman, party leader and senior members of the Civic Party attended a press conference. D35 stated on behalf of the Civic Party, as a solemn promise, that if the Chief Executive did not fulfil the “Five Demands”, the Civic Party would veto every bill and application for financial provisions, and financial proposal tabled before the Finance Committee. He further stated that the Civic Party hoped to assist in accomplishing 35+ and veto the budgets together; and that the Chief Executive might dissolve the LegCo and if the new LegCo still vetoed the original budget, the Chief Executive had to resign.
22. Between March and June 2020, coordination meetings (“CMs”) were held for each of the five geographical constituencies (Hong Kong Island, Kowloon East, Kowloon West, New Territories East and New Territories West) and the District Council (Second) constituency to deal with details of the coordination. D1 attended all of them, D2 and D3 some. The applicants (except D5) and/or their representatives attended. During the first CMs, a document titled “35+ 計劃 Project 35+”, prepared by D1, was circulated to introduce the coordination mechanism of the Primary Election. That document relevantly stated at §1 that only persons who agreed with the “Five Demands” might join the coordination mechanism.
23. During the first CMs, the attendees did not seriously discuss the matter of exercising the power to veto the budgets. They were more concerned about logistic matters. After the first CMs for the geographical constituencies, consensus on four matters emerged: the holding of Primary Election; the holding of election forum; the target number for seats, and the replacement mechanism.
24. Subsequent CMs were held for each of the geographical constituencies. The attendees paid more attention to D1’s idea of exercising the power to veto the budgets. A few of them expressly disagreed with it. As the preparatory work for the Primary Election progressed, two schools of thoughts emerged. Some participants aimed at using the veto power to enhance bargaining leverage of the pan-democratic camp with the Government. Others wanted to impose maximum pressure on Beijing by refusing to pass the budgets. Attempting to accommodate the conflicting views, D1 suggested to use the phrase “會運用” (will use) or “會積極運用” (will actively make use) to provide flexibility. In the beginning of May 2020, D2 observed that D1 in the CMs continued to advocate the use of vetoing power despite opposing views. D1 was no longer a mere facilitator but was steering the Project in a direction in conformity with his idea.
25. After each CM of a constituency, a document summarizing the discussion was circulated to the attendees of that constituency. After the final CMs, a document which recorded all decisions accumulated in previous CMs was disseminated to all attendees for that constituency via WhatsApp. On 8 June 2020, D2 and D3 received all the final coordination agreements of the geographical constituencies and the Health Services constituency and the finalized version of the “common programme/guiding principle” from D1. The final coordination agreements, most relevantly, stated:
(1) individuals and entities who approve of the “Five Demands” and winning the majority of 35 or more seats in the LegCo by the pan-democratic camp may join (§1);
(2) persons who join the Project agree that if they succeed in winning the majority, they “will” (for New Territories West and New Territories East) or “will actively” (the other four geographical constituencies and the Health Services constituency) make use of the powers of the LegCo including the power to veto the budgets to force the Chief Executive to respond to the “Five Demands” (§2); and
(3) those who win sufficient votes in accordance with the targeted seat number in each constituency will participate in the LegCo Election while the others will undertake not to participate in the LegCo Election (§6).
The final coordination agreements also detailed the replacement mechanism in case successful candidates are disqualified (§ 9).
26. Initially, D1 intended to ask all candidates to sign on “共同綱領” the “common programme/guiding principle” to be eligible to run in the Primary Election. He subsequently abandoned the idea to reduce the risk of disqualification. At the press conference on 9 June 2020, D1 publicly announced that candidates for the Primary Election were not required to sign the “common agreement/guiding principle” because he did not want to give the Government any excuse to disqualify them in the LegCo Election.
27. Frustrated, D7, D26 and D37 on 10 June 2020 initiated the “墨落無悔 堅定抗爭 抗爭派立場聲明書” (“Resolute Resistance, Inked without Regret” Online Declaration) (“the IWR Declaration”) on D7’s Facebook account. The IWR Declaration read:
“No Regrets for Signing: Perseverance in Fighting
Declaration of Position of the Resistance Bloc
Professor TAI Yiu-ting held a press conference yesterday [June 9] to explain the details of the Primary Election. It was indicated that candidates would not be required to sign the Common Program.
We are of the view that the Common Program, which was agreed upon at the Primary Election Coordination Meeting, forms the basis for cooperation between the candidates. The Program has taken into account differences in stances, and formed the largest common ground among the resistance camp spectrum. There should be no regrets for signing, otherwise it would be a violation of the trust our voters have put in (us).
We call on those who intend to participate in the Primary Election to publicly sign the following declaration when announcing their candidacy:
I agree with ‘Five demands, not one less’. I will use the powers conferred on the Legislative Council by the Basic Law, including vetoing the Budget, to force the Chief Executive to respond to the five demands, dropping all the charges against the resistance fighters, holding the relevant persons accountable for police brutality, and restarting political reform to achieve dual universal suffrage.
I agree that if the supporting rates fall outside the expected range of numbers of seats that can be secured in each respective constituency, (I) must clearly announce the end of the election campaign.”
28. D7, D26 and D37 called upon those who intended to participate in the Primary Election to sign and/or endorse the IWR Declaration to reinforce commitment to the goal of the Project and strengthen the binding effect of the agreement reached amongst them. In the event, D11, D14, D33, D36, D37 and D47 signed the IWR Declaration. Candidates from the Civic Party did not individually sign on it but the Civic Party endorsed it collectively. D16’s name appeared on the IWR Declaration posted on D27’s Facebook page. D17 and D38, from the Democratic Party, together with others from the Democratic Party and D41 did not endorse it.
29. Between 19 and 22 June 2020, D6 to D47 submitted the Primary Election Nomination Forms and paid election deposits in order to take part in the Primary Election. The Nomination Form and Acknowledgement of Receipt for the deposit explicitly stated that the candidate was required to agree to and support the consensus reached in the CMs, including the goals of the Project. Specifically, §2 of Part II of the Nomination Form required a candidate running in the Primary Election to confirm their agreement and support to the consensus of the CM led by D1 and D2, including the Project and its goals. A similar statement was made at §2 of the Acknowledgement of Receipt. §3 further stated that in the event that a candidate contravened the aforesaid consensus, the deposit would not be refunded.
30. Between 25 June and 4 July 2020, the Primary Election forums were held for each constituency where all candidates of the Primary Election, except D29 and D47, attended.
31. The NSL came into effect on 30 June 2020 at 11 pm. Despite repeated warnings by the authorities that the Primary Election might violate the NSL, D1 continued to promote or advocate the Project and the Primary Election on social media and other publications. At a press conference on 6 July 2020 which D1, D2 and others attended, D1 repeated that one of the objectives was to use the power to veto the budgets. He also mentioned the dissolution of the LegCo. At another press conference on 9 July 2020 (“the 9/7/2020 Press Conference”), D1 to D4 gave details of the Primary Election. D1 reiterated that the objectives of the Project was to obtain a majority of the LegCo and to exercise the power to veto the budgets.
32. On 3 July 2020, D5 placed a full-page advertisement in the Apple Daily to promote the Campaign.
33. The Primary Election was held on 11 and 12 July 2020. D6 to D47 participated as candidates. Of the applicants, D8, D10 and D11 ran in Hong Kong Island; D14, D16 and D17, Kowloon West; D33, D36, D37, D38 and D41, New Territories East; and D47, Health Services. On 13 July 2020, D3 arranged a press conference to announce the results of the Primary Election.
34. On 14 July 2020, D1 messaged the participants to the Primary Election, stating that the objective of the Project was to make use of the veto power given to the LegCo under the Basic Law and advising them against mentioning “vetoing every bill or paralyzing the Government”.
35. On 15 July 2020, 14 defendants including D33, D37 and D47 attended a press conference and presented a “Declaration of Resistance Camp Candidates in the Election”.
36. On 15 and 16 July 2020, D2 and D3 respectively announced their withdrawal from the Project. The Project was suspended after 15 July, releasing the candidates of the Primary Election from any declaration or “common programme/guiding principle” that they once endorsed.
37. Those who won in the Primary Election, including D8, D14, D33, D36, D37, D38 and D47, subsequently submitted their nomination forms to the returning officers to stand in the LegCo Election. Those who lost, including D10, D11, D17 and D41, did not stand in it. After the returning officers decided that the nominations of D8 and D33 were invalid, D10 submitted her nomination form to run in the LegCo Election in defiance of the final coordination agreement.
38. On 31 July 2020, the Government announced that the LegCo Election was to be postponed to 5 September 2021 because of COVID-19. As it turned out, it was further postponed to 19 December 2021.
39. The prosecution case against the applicants rested on how each of them knew of the objectives of the Scheme, and from there, their intention to be inferred from their utterances or statements and documents in their possession. We will deal with the evidence specific to individual applicants when we come to their cases later.
A4. Defence case
40. D8, D11, D14, D33, D36, D37 and D47 gave evidence. D5 called three witnesses. Other defendants did neither. Essentially, the defendants disputed that that the conspiracy as alleged existed; that they had knowledge of the conspiracy; that they were parties to it; and that they had the intent to subvert. [14]
A5. Convicting the defendants
41. The Trial Court made a number of factual findings (“the Main Findings”):
(1) Based on the evidence relating to the inception of the Project at the January Meeting to the press conference held by the Civic Party on 25 March 2020, the agreement as alleged by the prosecution existed as early as March 2020 if not by 9 June 2020. At least D35, if not the other members of the Civic Party who participated in the Primary Election subsequently, such as D20 and D30, became a party to it by 25 March 2020.[15]
(2) By March and April 2020, D1 had made it clear to the public the ultimate aim of the Project was to use the Scheme to undermine, destroy or overthrow the existing political system of the HKSAR established under the Basic Law and the “one country, two systems” policy.[16]
(3) After all the CMs for the geographical constituencies and by the end of the nomination period for the Primary Election, the attendees reached the consensus regarding the use of vetoing power.[17] The attendees were sent a summarizing document after the CMs by the organizers.[18] The final coordination agreements were made available to all of them for their use and perusal.[19] The consensus reached was not merely about logistic matters but also included the use of the power to veto budgets. Otherwise, D1 would not have to worry about the risk of disqualification.[20]
(4) On the “Five Demands”, the political agenda of the Project was the “Five Demands”; the objective of obtaining a majority in the LegCo was to compel the Government to accede to all the “Five Demands”. The stepping down of the Chief Executive, despite the evolving contents of the “Five Demands” over time, had always been there implicitly.[21] Moreover, the Government had already withdrawn the Extradition Amendment Bill. Other than that, even the demand to set up an independent commission of inquiry into the 2019 events, which appeared to be the easiest, had been refused by the Chief Executive back in August 2019. The pursuit of the “Five Demands’ was practically impossible.[22]
(5) In relation to the objectives of the Project:
(a) Obtaining a majority in the LegCo Election was merely a means.[23] D1 must have made known to the participants the objectives of the Project, including all the consequences of vetoing the budgets under BL 50 ‑ 52 and the use of vetoing power was just a means.[24]
(b) The press conference held by D1 on 6 July 2020 and his Facebook post on 14 July 2020 showed that one of the objectives of the Project was to veto the budgets, leading to the dissolution of the LegCo.[25]
(c) At the press conference held by the resistance camp on 15 July 2020, D44 said that they would veto the budgets indiscriminately in accordance with the agreement reached. D33, D37 and D47, who were there, expressed no contrary view.[26]
(d) D1’s message to all the participants of the Primary Election on 14 July 2020 advising them not to mention paralyzing the Government showed that it had all along been one of the objectives of the Project.[27]
(e) By vetoing the budgets once per se, D1’s ultimate aim and purpose of the Project would not be achieved and could hardly be described as a weapon of mass destruction. When he mentioned the notion of “vetoing the budgets”, D1 was referring to the overall vetoing powers collectively in BL 50 - 52 and their consequential effect, namely the dissolution of the LegCo and the resignation of the Chief Executive.[28] He regarded that as a constitutional weapon of mass destruction.[29]
(6) As to the consequences of the Scheme, if carried out, even if the Chief Executive chose not to dissolve the LegCo, any application for provisional appropriations would likewise be vetoed by the pan-democratic camp, who controlled the majority of the LegCo.[30] Further, although BL 51 allows the Chief Executive to approve short-term appropriations according to the level of expenditures of the previous fiscal year when the LegCo is dissolved, it would mean that the implementation of any new government policies would be seriously hampered and essentially put to a halt. The power and authority of both the Government and the Chief Executive would be greatly undermined. That would create a constitutional crisis for Hong Kong.[31]
42. In conclusion, the Trial Court found that the Scheme, if carried out in accordance with the intentions of the conspirators, would necessarily amount to or involve the commission by the successful candidates of a serious interfering in, disrupting or undermining the performance of duties and functions in accordance with the law by the Government of the HKSAR.[32]
43. The Trial Court then proceeded to consider if the individual defendants were parties to the conspiracy and if they had the subversive intent. For the reasons stated, the Trial Court found that each of them (other than D16 and D46) had knowledge of the Scheme, was a party to the Scheme, and had the intention to subvert the State power. We will examine the Trial Court’s reasons in convicting the applicants in detail when we come to their cases below.
B. Grounds of appeal
B1. Common grounds of law
44. We have already set out the provisions of NSL 22 at [1] above. To secure a conviction, the prosecution must prove that the accused:
(1) organizes, plans, commits or participates in one of the four prohibited acts;
(2) by force or threat of force or other unlawful means;
(3) with a view to subverting the State power.
The first two elements together constitute the actus reus of the offence. The third element stipulates the requisite mens rea to complete the offence, which is a specific intent to subvert the State power.[33]
45. Some of the applicants repeated some of the legal challenges raised below. There is a considerable overlap of their submissions on those matters, too.[34] Essentially, five broad common grounds of law are raised, complaining that the Trial Court erred in holding that:
(1) the ejusdem generis rule does not apply to the interpretation of NSL 22 so that “other unlawful means” may include any unlawful means other than “the use of force or the threat of force” (“the 1st Common Ground”);[35]
(2) the phrase “other unlawful means” in NSL 22 is not confined to criminal acts (“the 2nd Common Ground”);[36]
(3) genuinely and honestly held belief that the means adopted is lawful is not a defence to a NSL 22 offence (“the 3rd Common Ground”)[37]
(4) an agreement to veto the budget indiscriminately regardless of its contents and merits, with a view to forcing the Government to accede to some political agenda is an abuse of power in breach of BL 73, rendering it to be an unlawful means for the purpose of NSL 22 (“the 4th Common Ground”);[38]
(5) a mere intention to force the Chief Executive to resign pursuant to articles 50 to 52 of the Basic Law amounts to an intention to subvert (“the 5th Common Ground”).[39]
46. In light of their nature and possible implications, these Common Grounds may potentially affect all the applicants, and not just those who expressly take them. It is therefore advisable to dispose of them first. We will consider the 1st to 3rd Common Grounds in Section C, and the 4th and 5th Common Grounds in Section D.
B2. Other grounds
47. The remainder of the applicants’ individual grounds of appeal fall into three categories:
(1) errors of fact findings;
(2) excessive judicial intervention; and
(3) res gestae.
We will deal with them in Sections E to G respectively.
C. The 1st to 3rd Common Grounds
48. The 1st and 2nd Common Grounds raise the issue: what is the proper meaning of “other unlawful means”? It is eminently a matter of construction of NSL 22.
C1. The approach to construction
49. It is well-settled that the court adopts a contextual and purposive approach in construing provisions of the NSL, taking into account the constitutional basis upon which the NSL is applied in the HKSAR: HKSAR v Lai Chee Ying [2021] 24 HKCFAR 33, at [8]; and HKSAR v Lui Sai Yu (2023) 26 HKCFAR 332, at [20] - [26]. In short, the meaning and effect of a particular provision of the NSL is to be determined in the light of the context and purpose of the NSL as a whole. In ascertaining that context and purpose, the Explanations given and Decisions made in the proceeding of the National People’s Congress (“NPC”) and its Standing Committee (“NPCSC”) in the course of promulgating the NSL for inclusion in Annex III of the Basic Law, are extrinsic materials admissible as aids to construction of the NSL: Lai Chee Ying, at [11]. Thus, the court may have proper regard to the Explanation of a Draft Decision presented to the NPC on 22 May 2020 (“the 5.22 Explanation”), and the Decision by the NPC to adopt the same on 28 May 2020 (“the 5.28 Decision”), both of which are legislative materials leading to the promulgation of the NSL.[40]
50. For present purposes, it is highly pertinent to note the concerns of the CPG underlying the necessity and importance of enacting the NSL as stated in the 5.22 Explanation, quoted by the Court of Final Appeal in Lai Chee Ying, at [12]:
“At present, the increasingly notable national security risks in the HKSAR have become a prominent problem. In particular, since the onset of Hong Kong’s ‘legislative amendment turmoil’ in 2019, anti-China forces seeking to disrupt Hong Kong have blatantly advocated such notions as ‘Hong Kong independence’, ‘self-determination’ and ‘referendum’, and engaged in activities to undermine national unity and split the country. They have brazenly desecrated and defiled the national flag and emblem, incited Hong Kong people to oppose China and [the CPC], besiege [CPG] offices in Hong Kong, and discriminate and ostracize Mainland personnel in Hong Kong. These forces have also willfully disrupted social order in Hong Kong, violently resisted police enforcement of the law, damaged public facilities and property, and paralyzed governance by the government and operation of the legislature. Moreover in recent years, certain foreign or external forces have flagrantly interfered in Hong Kong’s affairs. They have made intervention and created disturbances in various ways, such as by legislative and administrative means and through non-governmental organizations. In collusion with those anti-China Hong Kong disrupters, these forces of the same ilk backed and cheered on the disrupters and provided a protective umbrella, and utilized Hong Kong to carry out activities endangering national security. These acts and activities have seriously challenged the bottom line of the ‘One Country, Two Systems’ principle, seriously undermined the rule of law, and seriously jeopardized national sovereignty, security and development interests.”
51. Turning to the legislative proposals for the NSL, the 5.22 Explanation identified five basic principles, including, “resolutely safeguarding national security”; “upholding and enhancing the ‘one country, two systems’ regime”; “resolutely upholding ‘the constitutional order in the HKSAR as established by the Constitution and the Hong Kong Basic Law”.
52. When adopting the 5.22 Explanation in making the 5.28 Decision, the NPC considered, among other things, that:
“[the] risks for national security in the [HKSAR] have become notable in recent years. Various unlawful activities such as advocacy for ‘Hong Kong independence’ as well as acts of secession, violence and terrorism, etc, have seriously jeopardized national sovereignty, unity and territorial integrity. Certain foreign or external forces have flagrantly interfered in Hong Kong’s affairs and utilized Hong Kong to carry out activities endangering national security.”
The NPC accordingly made the 5.28 Decision as contained therein:
“[to] safeguard national sovereignty, security and development interests, uphold and improve the ‘one country, two systems’ regime, safeguard the long-term prosperity and stability of Hong Kong, and safeguard the legitimate rights and interests of Hong Kong residents.”
53. At §1 of the 5.28 Decision, the NPC reiterated the State’s commitment and determination to “unswervingly, fully and faithfully” implement the “one country, two systems” principle with “Hong Kong people administering Hong Kong and a high degree of autonomy”; to uphold the Constitution and the constitutional order in the HKSAR established by the Basic Law; and to take necessary measures to establish and improve the legal system and enforcement mechanisms for the HKSAR to safeguard national security, as well as to prevent, stop and punish in accordance with the law acts and activities endangering national security.
54. At §6, the NPC entrusted the NPCSC to formulate laws on establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security, in order to, among others, prevent, stop and punish acts and activities endangering national security.
C2. Primary legislative purposes
55. Applying the above approach to construction, three primary legislative purposes emerge from the legislative materials of the NSL, which inform the construction of NSL 22.
56. First, upholding the “one country, two systems” regime and the constitutional order in the HKSAR as established by the Constitution and the Basic Law is a fundamental aspect of safeguarding national security in the Region. Put differently, the “one country, two systems” regime and the constitutional order in the HKSAR are interests central to national security that the NSL aims to safeguard in the Region.
57. As stated in the Preamble of the Basic Law, the HKSAR is established in accordance with Article 31 of the Constitution to uphold the national unity and territorial integrity and to maintain the prosperity and stability of Hong Kong. BL 1 declares that the HKSAR is an inalienable part of the PRC; and BL 12 stipulates that the HKSAR shall be a local administrative region of the PRC, enjoying a high degree of autonomy and coming directly under the CPG. Article 31 of the Constitution and BL 1 and BL 12 together establish the constitutional order in the HKSAR under the “one country, two systems” principle. See Secretary for Justice v Persons conducting themselves in any of the acts prohibited under paragraph 1(a), (b), (c) or (d) of the Indorsement of Claim [2024] 3 HKLRD 32, per Poon CJHC at [35].
58. In giving effect to the first legislative purpose:
(1) NSL 1 expressly provides that the NSL is enacted for the purpose of, among other aspects, ensuring the resolute, full and faithful implementation of the “one country, two systems” policy under which the people of Hong Kong administering Hong Kong with a high degree of autonomy; and
(2) NSL 2 refers to BL 1 and BL 12, which are fundamental provisions on the legal status of the HKSAR, as the lynchpin for safeguarding national security in the HKSAR:[41] Secretary for Justice v Persons conducting themselves in any of the acts prohibited under paragraph 1(a), (b), (c) or (d) of the Indorsement of Claim, per Poon CJHC, supra, at [37].
59. The second legislative purpose is that the NSL must effectively prevent, stop and punish all acts and activities endangering national security. Some of the examples of such acts and activities given in the legislative materials clearly involve force, such as disrupting public order, violently resisting police enforcement of the law, and damaging public facilities and property. However, some other acts and activities may be committed without force, such as advocating “Hong Kong independence”, inciting Hong Kong people to oppose the State, and paralyzing governance by the government and operation of the legislature. Plainly, the NSL must cover all acts and activities endangering national security, whether involving force or otherwise.
60. Giving effect to this legislative purpose, NSL 3(3)[42] imposes on the executive authorities, legislature, judiciary of the Region the duty to prevent, suppress and impose punishment for any act or activity endangering national security in accordance with the NSL and other relevant laws. In a similar vein, NSL 8[43] requires the law enforcement and judicial authorities of the HKSAR to fully enforce the NSL and the laws in force in the Region concerning the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security, in order to safeguard national security effectively. These two articles embrace all acts and activities endangering national security, without differentiating between those that involve force and those that do not, or limiting the duty to suppress, prevent or punish such acts or activities to the former only.
61. Third, read together, these two legislative purposes mean that the NSL must seek to prevent, stop and punish all acts and activities endangering the constitutional order in the HKSAR, whether involving force or otherwise.
C3. Meaning of “other unlawful means”
62. To recap, the entire phrase under construction reads: “by force or threat of force or other unlawful means”. As already pointed out, it is the second element of the actus reus of a NSL 22 offence. It categorizes the means by which the prohibited act is committed into (1) force, that is, the actual use of force; (2) threat of force; and (3) other unlawful means. A proper construction of “other unlawful means” must give full effect to the legislative purposes identified above. It clearly intends to cover all other unlawful means without restricting to those involving force only.
63. It follows that the Trial Court is correct in holding that “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”.[44]
C4. The applicants’ contrary arguments
64. The applicants advance two major arguments in support of their contrary constructions of “other unlawful means”.
C4.1 The ejusdem generis rule
65. They first seek to deploy the ejusdem generis rule. Briefly stated, the ejusdem generis rule is a principle of construction that wide words associated in the text with more limited words are taken to be restricted by implication to matters of the same limited character: Bennion, Bailey and Norbury on Statutory Interpretation (8th Edition, 2020), §23.2 at p.678. Praying in aid of this rule, the applicants argue that “other unlawful means” is qualified by the genus of “force or threat of force” immediately preceding it so that it is restricted to “unlawful means with the use of force or the threat of force”.
66. This argument gives rise to the prior question whether the applicants may invoke the ejusdem generis rule, which is a particular application of statutory construction of local laws, to construe NSL 22, the NSL being a national law applied to Hong Kong through Annex III of the Basic Law. In our view, the answer is yes. It is because the court adopts essentially the same contextual and purposive approach to construction of both local statutes and the NSL. It follows that the ejusdem generis rule, as an instance of its application, should also be available for construing the NSL unless it is displaced by a contrary NSL provision pursuant to NSL 62. Insofar as NSL 22 is concerned, since no such contrary NSL provision exists, the applicants may invoke the ejusdem generis rule in argument. Whether the rule applies is, of course, another matter.
67. In our view, the ejusdem generis rule clearly does not apply.
68. The rule is an application of the contextual principle of construction noscitur a sociis whereby a word or phrase is not to be construed as if it stood alone but in the light of its surrounding texts. It arises from the linguistic implication by which words having literally a wide meaning (when taken in isolation) are treated as reduced in scope by the verbal context. The rule has been explained on the basis that the general words are only intended by the draftsman to guard against some accidental omission in the objects of the kind mentioned and are not intended to extend to objects of a wholly different kind: Bennion, at p.680. The rule is presumed to apply unless there is some contrary indication: Bennion, at p.678; see also HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191, per Cheung CJ at [12] - [14].
69. A contrary intention may be gathered from the context and purpose of the provision under construction: HKSAR v Luk Kin Peter Joseph & Another [2016] 1 HKLRD 378, at [152]. Here, the conclusion to be drawn from the contextual and purposive considerations of the legislative materials is that the means to commit the prohibited acts under NSL 22 is not to be limited to force or threat of force.
70. Another way of looking at the matter is this. For the ejusdem generis rule to apply, there must be a sufficient indication of a category that can be properly described as a class or genus, and the genus must be narrower than the general words it is said to regulate: Bennion, §23.2 at p.681. On a proper reading of the phrase “by force or threat of force or other unlawful means” as an element of the actus reus of a NSL 22 offence, the genus is the means to be adopted in committing the prohibited acts, and not “force or threat of force”, which is but one of the means.
71. Mr Steven Kwan, for D5 and D37[45] takes four broad points.
72. First, Mr Kwan complains that the Trial Court went beyond the permissible use of legislative debate by not restricting themselves to use the 5.22 Explanation and the 5.28 Decision to supply the context or identify the mischief. He relies on Pepper v Hart [1993] AC 593, at p.640B-D. There, Lord Browne-Wilkinson said that the exclusionary rule prohibiting references to Parliamentary materials for statutory construction should be relaxed where (a) the legislation is ambiguous, or leads to an absurdity; (b) the material relied upon consists of a statement by the minister or other promoter of the bill; (c) the statement is clear. Mr Kwan submits that none of those conditions for using legislative materials in ascertaining the meaning of a provision in the resulting legislation is satisfied in the present case.
73. In our view, Mr Kwan’s reliance on Pepper v Hart is entirely misplaced. Under the contextual and purposive approach, words in a statute are given their natural and ordinary meaning with context and purpose to be considered alongside the expressed wording from the start, and not merely at some later stage when an ambiguity is thought to arise: Chan Chun Kit, per Cheung CJ at [10]. It is entirely legitimate and indeed necessary for the court to refer to the 5.22 Explanation and the 5.28 Decision to understand the matrix in which the NSL was enacted in order to ascertain the legislative purposes of NSL 22. The Pepper v Hart principle does not prevent the court from doing so.
74. Second, Mr Kwan points out that the original Chinese text in §6 of the 5.28 Decision mandates the NPCSC to enact the NSL to effectively prevent, etc “any act or activity endangering national security”,[46] and not all such acts or activities. The NPCSC cannot go beyond such framework in formulating the NSL. However, that phrase in §6 must be understood in the entire context of the Explanation and Decision. When it is so understood, especially bearing in mind the ordinary usage of the Chinese words “任何”, it clearly conveys the unmistakable directive that no act or activity endangering national security should escape the full force of the NSL. In other words, the NPCSC must formulate the NSL to catch all acts and activities endangering national security falling within its ambit.
75. Third, Mr Kwan seeks to derive assistance by drawing a comparison between NSL 20 and NSL 22.
76. NSL 20 provides:
“A person who organizes, plans, commits or participates in any of the following acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification shall be guilty of an offence:
(1) separating the Hong Kong Special Administrative Region or any other part of the People’s Republic of China from the People’s Republic of China;
(2) altering by unlawful means the legal status of the Hong Kong Special Administrative Region or of any other part of the People’s Republic of China; or
(3) surrendering the Hong Kong Special Administrative Region or any other part of the People’s Republic of China to a foreign country.” (Emphasis supplied)
77. Mr Kwan submits that the Trial Court effectively regarded “by force or threat of force or other unlawful means” in NSL 22 as the same as “whether or not by force or threat of force” in NSL 20. That is wrong because in couching the two phrases differently, the NPCSC must have intended them to bear different meanings. The NPCSC must have therefore intended to limit “other unlawful means” in NSL 22 to mean the genus created by “force or threat of force”. Otherwise, that phrase would simply mean “any unlawful means”. It is an interpretative presumption that where different words are used in a legislation they have different meanings because legislation is put together carefully to produce a coherent text; and the NPCSC presumably did not indulge in elegant variation but kept to particular words when wishing to convey a particular meaning.
78. In our view, the reason for using different language for the two phrases under discussion is this. In NSL 20, the means for committing the prohibited acts, involving force or not, is not an element of the actus reus of the offence. The phrase “whether or not by force or threat of force” emphasizes the point that once the prohibited acts are committed with the requisite mens rea, the offence is complete; and whatever means the accused adopts in doing so is immaterial. In NSL 22, the means adopted for committing the prohibited acts is an element of the actus reus. The phrase “by force or threat of force or other unlawful means” makes it clear that it catches all unlawful means, whether it is force or threat of force or some other unlawful means. In short, the two phrases serve different purposes. Drawing a comparison between them without reference to that distinction misses the mark.
79. Mr Kwan further seeks to explain the difference in NSL 20 and NSL 22 in this way. NSL 1 states the reasons for promulgating the NSL. NSL 2 relates to secession specifically and the offence is created by NSL 20. Since territorial unity is non-negotiable, NSL 20 expressly provides that an accused can commit secession with or without force. On the other hand, overthrowing or undermining the basic systems happens all the time in history, and, to quote Mr Kwan, some such acts “are bloody, some are not”. NSL 22 only targets “bloody” acts. “Non-bloody acts”, if they happen to be criminal acts, can be dealt with by the general criminal law.
80. We have no hesitation in rejecting Mr Kwan’s submissions because:
(1) We fail to see how only one particular aspect of national security, namely, territorial unity, is “non-negotiable” while other aspects are not. There is no justification to draw such distinction whatsoever, which would only defeat the primary legislative purposes of the NSL.
(2) Mr Kwan’s reading of NSL 2 is far too narrow and unduly restrictive. NSL 2 gives effect to the first primary legislative purpose of the NSL as identified above. In referring to BL 1 and BL 12 as fundamental provisions of the Basic Law, it emphasizes the utmost importance of upholding the constitutional order in the HKSAR as established by the Constitution and the Basic Law under the “one country, two systems” regime. National unity, territorial integrity, and the legal status of the HKSAR are integral parts of that constitutional order. Hence NSL 20. The basic systems and body of power of the State, and those of the HKSAR are also central to that constitutional order. Hence NSL 22. In short, the interests of national security that NSL 2 encapsulates include secession but are not, contrary to Mr Kwan’s contention, limited to it.
(3) If, as submitted by Mr Kwan, overthrowing or undermining the basic systems of the State or the HKSAR or threats to do so happen all the time, there is all the more reason for NSL 22 to catch all such acts or activities, whether they involve force or not.
81. Fourth, Mr Kwan submits that for ordinary citizens, force or threat of force must be unlawful and for persons authorized by law to use force, using it with an intent to subvert is unlawful. So “by force or threat of force” would be subsumed in “other unlawful means” if it means any unlawful means, rendering the phrase otiose. However, as observed, the phrase “by force or threat of force or other unlawful means” groups the means for committing the prohibited acts into three broad categories: (1) force; (2) threat of force; and (3) other unlawful means. Read in context, “other unlawful means” clearly means “other unlawful means not involving force or threat of force”. It is not “any unlawful means”. It does not render “force or threat of force” otiose as contended.
82. This disposes of the 1st Common Ground.
C4.2 Limiting to criminal offences
83. The second major argument run by the applicants is that “unlawful means” in NSL 22 should be confined to “criminal acts”.
84. Mr Robert Pang SC, for D47,[47] takes three points:
(1) NSL 22, like any other criminal statute, should be construed strictly and narrowly. Such a restrictive construction is consistent with the requirement in NSL 4 and NSL 5 to protect human rights and the right to fair trial. It should apply to NSL 22 which is a sweeping offence carrying a substantial custodial sentence.
(2) The proper question to ask is not how national security is best protected but whether the NPCSC has adopted sufficiently clear and specific language to deprive fundamental right of personal liberty. If it has not clearly set out an offence, it is not for the court to fill the gap.
(3) Referring to various local penal provisions, Mr Pang submits that the word “unlawful” has been widely used to describe different criminal offences.
85. We are unable to accept Mr Pang’s submissions because:
(1) A restrictive construction to NSL 22 does not detract from the application of the contextual and purposive construction. As seen in Secretary for Justice v Cheng Ka Yee (2019) 22 HKCFAR 97, the Court of Final Appeal applied that approach to construing section 161(1)(c) of the Crimes Ordinance: see [34]. As we have demonstrated, when it is construed in the context in which the NSL was enacted with its second primary legislative purpose in mind, NSL 22 evidently covers all unlawful means other than force or threat of force; and is not confined to criminal acts.
(2) There is no ambiguity in “other unlawful means” as contended.
(3) The reliance on other local penal provisions in which the word “unlawful” has been used to describe or define the offences does not assist. For those provisions must be understood in their own context and purpose, which are quite different from those of NSL 22.
86. In the course of his oral address, Mr Anthony Chau, Deputy Director of Public Prosecutions,[48] submits that a person can only act in a way as authorized by the law; otherwise he would be using “other unlawful means” for the purpose of NSL 22. We suspect it is a slip of the tongue. If it were intended to be a serious submission, we would reject it. For it is well settled under the common law that a private person may do anything which he chooses which the law does not prohibit: see for example, R v Somerset County Council ex parte Fewings [1995] 1 All ER 513, per Laws J at p.524e-f. There being no contrary provision in the NSL, this norm is equally apposite to the construction of NSL 22. The prosecution must prove that an accused has acted in breach of the law in order to bring him within the “other unlawful means” limb.
87. This disposes of the 2nd Common Ground.
C5. Genuine belief that the means is lawful
88. In his written submissions, Mr David Ma, for D14 and D36,[49] submits that an accused’s genuinely and honestly held belief that the means he adopts is lawful is a defence. However, he no longer maintains that position in his oral address. Mr Chau accepts that in terms of evidence, such a belief of the accused may be relevant to the issue if he has the specific intent to subvert. As we understand Mr Ma, he is content with the prosecution’s position. That being their common ground, we accept that it is correct as a general proposition.
89. In the present case, and as a matter of evidence, once the Trial Court was satisfied that a defendant would be acting contrary to the Basic Law with an intent to subvert in pursuing the Course of Conduct, the argument of mistaken belief falls away. It is because one could not have genuinely believed that the Basic Law would allow a LegCo member, when purportedly exercising his constitutional powers and functions, to carry out any subversive act.
90. This disposes of the 3rd Common Ground.
C6. Conclusion
91. In conclusion, on actus reus, we hold that on a proper construction, “other unlawful means” in NSL 22 covers all unlawful means other than force or threat of force, committed in breach of the law. Contrary to the applicants’ submissions, it is not limited to force or threat of force or criminal acts. In the present context, it may include an act committed in breach of an article of the Basic Law. As to mens rea, a genuine and honest belief held by an accused that the means adopted is lawful, while not a defence, is a matter of evidence relevant to the question if he has the specific intent to subvert.
D. The 4th and 5th Common Grounds
D1. Principal issues
92. By the 4th Common Ground, the applicants complain that the Trial Court erred in holding that it was an “unlawful means” for the applicants to agree to veto the budget “indiscriminately” (ie regardless of its contents and merits) with a view to forcing the Government to accede to their political agenda, which was found to amount to an abuse of power. The Trial Court’s finding and interpretation fail to consider properly and honour the roles, duties and functions of the LegCo in the constitutional context of the Basic Law, and is inconsistent with the principle of non-intervention of legislative affairs by the courts. The LegCo discharges both legislative and constitutional duties and functions; and controlling the purse is always one of the powers available to the LegCo discharging its constitutional duties and functions. There is no reason, and it is contrary to the constitutional design of the Basic Law, that the power of the purse should be so restricted as to be exercised only for reasons relating to the contents and merits of the budget. Besides, BL 50 ‑ 52 are designed to resolve a deadlock between a democratically-elected legislature and the executive in the course of the constitutional development in Hong Kong. A deadlock could arise under many different circumstances. The intent is not to restrict how the LegCo is to exercise its power of the purse, but to provide internal checks and balances to allow meaningful constitutional oversight by the LegCo and cautious exercise of such power.
93. In advancing the 5th Common Ground, the applicants contend that the Trial Court erred in holding that a mere intention to force the Chief Executive to resign pursuant to the express provisions in the Basic Law amounts to and is equivalent to an intention to subvert, in the sense of an intention to bring about serious interference, disruption and undermining the performance of duties and functions of the Government. There could not be an intention to subvert if the intention is to bring about the consequences that are expressly provided by the Basic Law with a view to bringing forward democratic reform promised by the Basic Law. Otherwise, any person who exercises the power under BL 50 would be found to have a subversive intent, as in exercising the power, that person must have intended the consequences set out in the Basic Law. A subversive intention must be causing something beyond the contemplation of the Basic Law. However, there was no evidence to that effect.
94. In support of the Trial Court’s findings, the respondent contends that the LegCo members are under a duty to examine the merits of the budgets under BL 73(2). Vetoing the budgets indiscriminately without reference to its merits is an abuse of power, in breach of the LegCo members’ duties under BL 73(2) and BL 104, which falls within the scope of an unlawful means for the purposes of NSL 22. Given that the unique constitutional order and legal framework of the HKSAR are fundamentally different from other overseas jurisdictions, the exercise of the so-called power of “controlling the purse” to achieve political objectives by their legislatures, is irrelevant to Hong Kong.
95. The respondent further argues that the applicants’ reliance on universal suffrage as a justification on their act is a red-herring. At trial, they did not argue that their plan to veto the budgets was a constitutionally grounded effort to advance universal suffrage. In any event, such an argument is without merit because the specific methods for selecting the Chief Executive and forming the LegCo are prescribed in the Basic Law. The applicants’ alleged aspiration for universal suffrage did not give them a licence to commit unilateral and unlawful action, blatantly disregarding the constitutional framework that governs political reform. The Trial Court rightly found that the “Five Demands” were unattainable within the existing framework, demonstrating that the Scheme was not a genuine attempt in political negotiation, but a calculated plan to paralyze the Government and bring about political instability through indiscriminate vetoes of budgets with a view to subverting the State Power.
96. The respondent also argues that the Trial Court was right in finding that the Course of Conduct was a prohibited act within NSL 22(3), its ultimate aim being to undermine, destroy or overthrow the existing political system and structure of the HKSAR established under the Basic Law and the “one country, two systems” policy. The non-intervention principle is inapplicable because it does not shield conduct that constitutes a breach of the constitutional duties under the Basic Law, which amounts to an abuse of power with a view to subverting the State power.
97. Lastly, the respondent submits that the applicants did have the specific intent to subvert. As a matter of logic, the intent to cause the consequences set out in NSL 22(3) would demonstrably involve a subversive intent, that is, with a view to subverting the State power. The Scheme, which contemplated indiscriminate vetoing of the budgets, would clearly result in the prohibited consequences of NSL 22(3). Whatever the political agenda that might have been involved, an agreement to carry out such conduct involving unlawful means and intended to bring about the prohibited consequence is no less an agreement to subvert.
98. The 4th and 5th Common Grounds and the parties’ submissions raise four principal issues:
(1) whether the Scheme constitutes an unlawful means within the meaning of NSL 22 (Issue 1);
(2) whether the Course of Conduct is a prohibited act within the meaning of NSL 22(3) (Issue 2); and
(3) whether the non-intervention principle applies (Issue 3); and
(4) what the specific intent to subvert the State power for the present offence entails (Issue 4).
To answer them, it first requires a critical examination of the articles of the Basic Law in question against the constitutional order in the HKSAR.
D2. HKSAR’s constitutional order
99. Several aspects of the constitutional order in the HKSAR that are relevant to the issues are identified below. They, of course, do not represent a full picture of the Region’s constitutional order and should not be regarded as such.
100. First, the HKSAR is an inalienable part of China: Preamble of the Basic Law, and BL 1.[50] In categorically stating that Hong Kong is an inalienable part of the State, BL 1 reflects the inseparability of Hong Kong from China as a unitary state.
101. Second, the HKSAR is authorized by the NPC to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication in accordance with the provisions of the Basic Law: BL 2.[51] BL 2 underscores the source of HKSAR’s high degree of autonomy and its enjoyment of executive, legislative and independent judicial power. They all originate from the authorization by the NPC. BL 2 also emphasizes that the exercise of the high degree of autonomy and the enjoyment of executive, legislative and judicial power must be in accordance with the provisions of the Basic Law. The powers must not be exercised in a manner that contravenes any provision of the Basic Law.
102. Third, in terms of its legal status and relationship with the CPG in the overall political structure of the State, the HKSAR is a local special administrative region and comes directly under the CPG: BL 12.[52] Because it is directly under CPG’s jurisdiction, the CPG appoints the Chief Executive and the principal officials of the executive authorities of the HKSAR in accordance with Chapter IV of the Basic Law: BL 15.
103. BL 12 further specifies the limits of HKSAR’s powers. It enjoys a high degree of autonomy and practises a system and implementing policies different from those of the Mainland. Pursuant to the authorization in BL 2, BL 16 to BL 19 vest the HKSAR with executive, legislative and independent judicial powers respectively and make further provisions in those regards.
104. Fourth, as stipulated in BL 11(1),[53] the executive, legislative and judicial systems practised in the HKSAR are all prescribed by the Basic Law in accordance with Article 31 of the Constitution.[54] The relevant provisions are contained in Chapter IV on political structure. Chapter IV is divided into four Sections: Section 1 on the Chief Executive (BL 43 to BL 58); Section 2, the Executive Authorities (BL 59 to BL 65); Section 3, the Legislature (BL 66 to BL 79); and Section 4, the Judiciary (BL 80 to BL 96). As will be elaborated, embedded in the Region’s political structure is the executive-led system headed by the Chief Executive.
105. The Chief Executive is the head of the HKSAR (BL 43(1)), accountable to both the CPG and the HKSAR in accordance with the Basic Law (BL 43(2)). He is also the head of the Government of the HKSAR (BL 60). He is selected by election or through consultations held locally and may be appointed by the CPG (BL 45(1)). As both the head of the HKSAR and the Government, the Chief Executive exercises the wide-ranging powers and functions as numerated in BL 48 to lead and govern the HKSAR:
“Article 48
The Chief Executive of the Hong Kong Special Administrative Region shall exercise the following powers and functions:
(1) To lead the government of the Region;
(2) To be responsible for the implementation of this Law and other laws which, in accordance with this Law, apply in the Hong Kong Special Administrative Region;
(3) To sign bills passed by the Legislative Council and to promulgate laws;
To sign budgets passed by the Legislative Council and report the budgets and final accounts to the Central People's Government for the record;
(4) To decide on government policies and to issue executive orders;
(5) To nominate and to report to the Central People's Government for appointment the following principal officials: Secretaries and Deputy Secretaries of Departments, Directors of Bureaux, Commissioner Against Corruption, Director of Audit, Commissioner of Police, Director of Immigration and Commissioner of Customs and Excise; and to recommend to the Central People's Government the removal of the above-mentioned officials;
(6) To appoint or remove judges of the courts at all levels in accordance with legal procedures;
(7) To appoint or remove holders of public office in accordance with legal procedures;
(8) To implement the directives issued by the Central People's Government in respect of the relevant matters provided for in this Law;
(9) To conduct, on behalf of the Government of the Hong Kong Special Administrative Region, external affairs and other affairs as authorized by the Central Authorities;
(10) To approve the introduction of motions regarding revenues or expenditure to the Legislative Council;
(11) To decide, in the light of security and vital public interests, whether government officials or other personnel in charge of government affairs should testify or give evidence before the Legislative Council or its committees;
(12) To pardon persons convicted of criminal offences or commute their penalties; and
(13) To handle petitions and complaints.”
106. The Government of the HKSAR is the executive authorities of the Region (BL 59) with the Chief Executive as the head of the Government (BL 60). The Government shall exercise the powers and functions as set out in BL 62:
“Article 62
The Government of the Hong Kong Special Administrative Region shall exercise the following powers and functions:
(1) To formulate and implement policies;
(2) To conduct administrative affairs;
(3) To conduct external affairs as authorised by the Central People's Government under this Law;
(4) To draw up and introduce budgets and final accounts;
(5) To draft and introduce bills, motions and subordinate legislation; and
(6) To designate officials to sit in on the meetings of the Legislative Council and to speak on behalf of the government.”
107. The LegCo is the legislature of the HKSAR. It shall be constituted by election (BL 68(1)). It shall exercise the powers and functions listed in BL 73, including relevantly examining and approving budgets introduced by the Government (sub-paragraph (2)); approving taxation and public expenditure (sub-paragraph (3)); receiving and debating the policy addresses of the Chief Executive (sub-paragraph (4)); raising questions on the work of the Government (sub-paragraph (5)); investigating into serious breach of law or dereliction of duty on the part of the Chief Executive and passing motion of impeachment (sub-paragraph (9)). Members of the LegCo may introduce bills which do not relate to public expenditure or political structure or the operation of the government and with consent of the Chief Executive, bills relating to government policies (BL 74).
108. The courts of the HKSAR at all levels shall be the judiciary of the Region, exercising the judicial power of the Region (BL 80). The courts shall adjudicate cases in accordance with the laws applicable in the Region as prescribed in BL 18 and may refer to precedents of other common law jurisdictions (BL 84).
109. These provisions of the Basic Law set up an executive‑led system with the Chief Executive as the head of the Region and the Government. They draw a recognized distinction among the Chief Executive, the Government, the LegCo and the Judiciary by allocating to them different constitutional roles together with distinct functions and powers that are central and primary to their roles. The provisions also define the scope of the lawful province, and hence the boundaries, within which each of them performs their functions and powers. They do not have authority beyond that granted to them by the Basic Law.
110. Fifth, since the Basic Law does not vest all powers or functions necessary for governing and administering the HKSAR in the Chief Executive, the Government or the LegCo alone, they do not and cannot exist or operate in isolation. Interaction and coordination between them is inevitable in areas where both the executive and legislative authority are required. Take, relevantly, passing of budgets as a live example.
111. The budgetary process laid down in the Basic Law involves three successive stages: preparation, approval and implementation. It begins with the exercise of executive authority when at the preparatory stage, the Government, and the Government alone, draws up and introduce budgets to the LegCo (BL 62(4)). So, the Government takes the lead in the budgetary process. Next, the legislative authority is engaged at the approval stage when the LegCo examines and approves budgets introduced by the Government (BL 73(2)). Only the LegCo has such powers and functions and without its approval, the budgets will remain mere estimates. Finally, the process goes back to the executive authority when at the implementation stage, the Chief Executive, in exercising the exclusive authority allocated to him, signs the budgets passed by the LegCo and reports them to the CPG for the record (BL 48(3)). The budgets take legal effect in the form of Appropriation Ordinances. During the entire budgetary process, the Chief Executive, the Government and the LegCo perform distinct and exclusive executive or legislative functions. While their functions differ, they act in coordination with the same objective to ensure that budgets will, after going through the constitutional and legislative budgetary process, take effect and be implemented accordingly. Both the executive and legislative branches, though performing different roles and functions, work together to that end.
112. In the budgetary process, the LegCo is of course not a rubber stamp. It must perform its constitutional functions assigned to it under BL 73(2) in examining and approving the budgets. It must ensure that public funds are allocated responsibly in accordance with the law and public interests. As is envisaged by BL 50, it may even refuse to pass a budget if justified, although that occasion must be extremely rare.
113. Sixth, associated with the allocation of different roles and functions is the check and balance between the executive and legislative branches. To achieve that, the Basic Law establishes a carefully constructed mechanism between the Chief Executive and the LegCo.
114. In relation to bills, BL 49 entitles the Chief Executive to return a bill passed by the LegCo to it within three months for reconsideration if he considers it to be incompatible with the overall interests of the Region. If the LegCo passes the original bill again by not less than a two-thirds majority of all the members, the Chief Executive must sign it and promulgate it within one month, or act in accordance with BL 50.
115. BL 50 - 52 applies to bills as well as budgets:
“Article 50
If the [Chief Executive] refuses to sign a bill passed the second time by the [LegCo], or the [LegCo] refuses to pass a budget or any other important bill introduced by the government, and if consensus still cannot be reached after consultations, the Chief Executive may dissolve the [LegCo].
The Chief Executive must consult the Executive Council before dissolving the [LegCo]. The Chief Executive may dissolve the [LegCo] only once in each term of his or her office.
Article 51
If the [LegCo] refuses to pass the budget introduced by the government, the Chief Executive may apply to the [LegCo] for provisional appropriations. If appropriation of public funds cannot be approved because the [LegCo] has already been dissolved, the Chief Executive may, prior to the election of the new [LegCo], approve provisional short-term appropriations according to the level of expenditure of the previous fiscal year.
Article 52
The [Chief Executive] must resign under any of the following circumstances:
(1) When he or she loses the ability to discharge his or her duties as a result of serious illness or other reasons;
(2) When, after the [LegCo] is dissolved because he or she twice refuses to sign a bill passed by it, the new [LegCo] again passes by a two-thirds majority of all the members the original bill in dispute, but he or she still refuses to sign it; and
(3) When, after the [LegCo] is dissolved because it refuses to pass a budget or any other important bill, the new [LegCo] still refuses to pass the original bill in dispute.”
116. As required by BL 70, if the LegCo is dissolved by the Chief Executive, it must, within three months, be reconstituted by election in accordance with BL 68.
117. Further, BL 73(9) empowers the LegCo to deal with the Chief Executive for serious breach of law or dereliction of duty that warrants his resignation when he refuses to do so by providing:
“If a motion initiated jointly by one-fourth of all the members of the [LegCo] charges the Chief Executive with serious breach of law or dereliction of duty and if he or she refuses to resign, the Council may, after passing a motion for investigation, give a mandate to the Chief Justice of the Court of Final Appeal to form and chair an independent investigation committee. The committee shall be responsible for carrying out the investigation and reporting its findings to the Council. If the committee considers the evidence sufficient to substantiate such charges, the Council may pass a motion of impeachment by a two-thirds majority of all its members and report it to the [CPG] for decision”.
It is then up to the CPG, to whom the Chief Executive is accountable under BL 43(2), to decide his fate. The LegCo has no power to remove him from office.
118. Moreover, BL 64, as a check and balance, expressly requires the Government to be accountable to the LegCo:
“The Government of the [HKSAR] must abide by the law and be accountable to the [LegCo]: it shall implement laws passed by the Council and already in force; it shall present regular policy addresses to the Council; it shall answer questions raised by members of the Council; and it shall obtain approval from the Council for taxation and public expenditure.” (Emphasis supplied)
In relation to obtaining approval for taxation and public expenditure, BL 73(3) correspondingly provides that the LegCo shall exercise the function of approving taxation and public expenditure.
119. As budgets encompass proposals for public expenditure and occasionally taxation, examining and approving budgets under BL 73(2) is a specific facet of the LegCo’s function to hold the Government accountable in relation to fiscal matters under BL 64.
120. Seventh, the Basic Law entrusts the Judiciary with judicial power to examine whether the legislation enacted by the LegCo, the performance of its functions and powers, and the acts of the executive authorities are consistent with the Basic Law and, if found to be inconsistent, to hold them to be invalid.[55] In exercising this jurisdiction, the courts perform their constitutional role under the Basic Law of acting as a constitutional check on the executive and legislative branches of government to ensure that they act in accordance with the Basic Law: Ng Ka Ling & Others v Director of Immigration (1999) 2 HKCFAR 4, per Li CJ at p. 25G-J. As the guardian of the Basic Law, the courts ensure that all governmental organs and branches, including the LegCo and its members, stay within their constitutional bounds: Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460, per Poon JA (as he then was) at [86].
121. Lastly, the Basic Law envisages further development of the political system in the HKSAR by amending the methods for the selection of the Chief Executive and the formation of the LegCo set out in Annex I and Annex II to the Basic Law respectively.
122. As required by BL 45(2), the method for selecting the Chief Executive shall be specified in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress, the ultimate aim being universal suffrage upon nomination by a broadly representative committee in accordance with democratic procedures. The specific method is prescribed in Annex I: “Method for the Selection of the Chief Executive of the [HKSAR]”: BL 45(3). Relevantly, Article 7 of Annex I provides: “If there is a need to amend the method for selecting the Chief Executives for the terms subsequent to the year 2007, such amendments must be made with the endorsement of a two-thirds majority of all the members of the [LegCo] and the consent of the Chief Executive, and they shall be reported to the [NPCSC] for approval.”
123. Similarly, the method for forming the LegCo shall be specified in the light of the actual situation in the HKSAR and in accordance with the principle of gradual and orderly progress, with universal suffrage as the ultimate aim: BL 68(2). The specific method for forming the LegCo is prescribed in Annex II: “Method for the Formation of the [LegCo] of the [HKSAR] and its Voting Procedures”: BL 68(3). Article III of Annex II provides for the method for the formation of the LegCo subsequent to 2007 in terms similar to Article 7 of Annex I.
124. In short, for both the methods for selecting the Chief Executive and forming the LegCo, any further development must take into account the actual situation prevailing in Hong Kong and be guided by the principle of gradual and orderly progress, with universal suffrage as the ultimate aim.
125. Over the years, the NPC has made certain interpretations and decisions regarding the methods for selection of the Chief Executive and formation of the LegCo. The last decision before the present offence is the NPCSC’s decision on issues relating to the selection of the Chief Executive by universal suffrage and on the method of forming the LegCo in 2016 dated 31 August 2014 (“the 8.31 Decision”).[56] These interpretations and decisions reflect the CPG’s constitutional role and exclusive authority under the Constitution and the Basic Law in prescribing the political system and its development in the HKSAR.
D3. BL 104 – constitutional duty to uphold the Basic Law
126. Another key provision in the Basic Law that is pertinent to the issues at hand is BL 104, which provides:
“When assuming office, the Chief Executive, principal officials, members of the Executive Council and of the [LegCo], judges of the courts at all levels and other members of the judiciary in the [HKSAR] must, in accordance with law, swear to uphold the Basic Law of the [HKSAR] of the [PRC] and swear allegiance to the [HKSAR] of the [PRC].” (Emphasis supplied)
127. The stipulation in BL 104 to uphold the Basic Law and to bear allegiance to the HKSAR are not only the legal contents which must be included in the oath prescribed by the Article, but also the legal requirements and preconditions for standing for election in respect of or taking up the public office specified in the Article. It is legally binding. The oath taker must sincerely believe in and strictly abide by the oath. If he makes a false oath, or after taking it, engages in conduct in breach of the oath, he shall bear legal consequences: Interpretation of Article 104 of the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China by the Standing Committee of the National People’s Congress,[57] Articles 1 and 3.
128. As Cheung CJHC (as he then was) explained in Chief Executive of HKSAR v President of the Legislative Council, at [27]:
“… the taking of an oath and pledging of allegiance are serious matters. When taking an oath, no less a promissory oath such as the LegCo Oath, both the form and the substance matter greatly. The requirement under [BL 104] is plainly designed to secure the genuine, solemn and sincere declaration and pledge by the holders of the important offices mentioned in that article to do their utmost, in accordance with the Basic Law, to discharge the high responsibilities entrusted to them in running the [HKSAR] in their respective roles assigned under the Basic Law. …”
129. The constitutional order in the HKSAR established by the provisions of the Basic Law in accordance with Article 31 of the Constitution under the “one country, two systems” principle is undoubtedly the central feature of the Basic Law. Swearing to uphold the Basic Law and bear allegiance to the HKSAR under BL 104 must necessarily entail the duty to uphold the constitutional order in the HKSAR.
130. For the LegCo members, the oath is prescribed in the Oaths and Declarations Ordinance,[58] section 16(d) and Schedule 2, Part IV. It follows substantially the language used in BL 104:
“I swear that, being a member of the Legislative Council of the Hong Kong Special Administrative Region of the People’s Republic of China, I will uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, bear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China and serve the Hong Kong Special Administrative Region conscientiously, dutifully, in full accordance with the law, honestly and with integrity.”
131. Taking the LegCo Oath is a constitutional requirement. In taking it, a LegCo member assumes a constitutional and legally binding duty to uphold the Basic Law and bear allegiance to the HKSAR. He cannot act in breach of it when he purports to exercise the powers and functions as a LegCo member. Thus understood, the constitutional duty encapsulated in BL 104 and prescribed in the LegCo Oath is an overarching duty. It ensures that whatever a LegCo member does in his official capacity, his conduct aligns with and does not deviate from his solemn pledge and declaration to uphold the Basic Law and bear allegiance to the HKSAR, including the duty to uphold the constitutional order in the HKSAR. He cannot purport to exercise his official powers and functions contrary to that overarching constitutional duty. If he does, he will be in breach of BL 104 and the LegCo Oath. Legal consequences will follow.
132. This overarching duty to uphold the constitutional order in the HKSAR, embedded in BL 104 and more specifically in the present case in the LegCo Oath, aligns with the duty to uphold the constitutional order in the HKSAR under NSL 2 and the primary legislative purposes of the NSL discussed at [55] – [61] above.
D4. A short concluding word on the LegCo
133. From the above outline, we draw a short conclusion on the LegCo in the overall constitutional order in the HKSAR.
134. The LegCo is not a national assembly. It is a legislature of a local special administrative region, the HKSAR, which enjoys a high degree of autonomy under the CPG. The LegCo’s powers and functions come from the authorization by the NPCSC. It does not enjoy parliamentary supremacy such as some overseas national legislatures do, like for example, the UK Parliament. Just as is the case for any legislature that is established by the constitution of the jurisdiction, written or otherwise, the constitutional design, role, powers and functions of the LegCo are all prescribed by the Basic Law in accordance with Article 31 of the Constitution. The LegCo has the powers and functions as allocated to it by the Basic Law only.
135. Further, the LegCo must exercise its powers and functions in accordance with, and not in contravention of, the provisions of the Basic Law. Relevantly, when it exercises its powers and functions under BL 50 ‑ 52, or in examining and approving budgets under BL 73(2) or in holding the Government accountable under BL 64, it must act in accordance with, and not in contravention of, the Basic Law. Significantly, it cannot act in contravention of BL 2 and BL 12, the two fundamental provisions in the Basic Law, which establish the constitutional order in the HKSAR.
136. As to the LegCo members, pursuant to BL 104 and the LegCo Oath, they are under a constitutional duty to uphold the Basic Law, which includes the duty to uphold the constitutional order in the HKSAR. What we have said at the preceding paragraph in relation to the LegCo applies to them equally when they purport to perform their official powers and functions as LegCo members.
D5. Issue 1 – whether the Scheme is an unlawful means
137. With the above propositions in mind, we now consider if the Scheme is an unlawful means within the meaning of NSL 22.
138. The terms of the Scheme are set out in full at [2] above. To recap, it involves abusing the LegCo members’ powers under BL 73(2) with the specified purpose of: (1) obtaining a controlling majority in the LegCo to indiscriminately refuse to pass any budgets or public expenditure to be introduced by the Government regardless of their contents or merits of the contents; (2) compelling the Chief Executive to dissolve the LegCo under BL 50 so as to paralyze the operations of the Government; (3) ultimately causing the Chief Executive to resign under BL 52 entailed by the dissolution of the LegCo and the refusal to pass the original budget by the new LegCo.
139. The aim of the Scheme is clear. D1 described it as “a lethal constitutional weapon” and “a constitutional weapon of mass destruction”. He regarded it as an integral part of his plan of “mutual destruction”, aiming to compel the Chief Executive to resign, to paralyze the Government and to force the CPG to declare an end of the “one country, two systems” policy. He undoubtedly conceived it as a means to seriously interfere in, disrupt, undermine and even topple the constitutional order in the HKSAR. Such was the aim of the Scheme since inception which had been made known to the public. Importantly, it had remained the same whenever a participant chose to join it.
140. The Scheme must be considered as a whole. It is an elaborate plan consisting of three successive steps. The first and pivotal step is the LegCo members concerned exercising the power under BL 73(2) to veto the budgets indiscriminately regardless of their contents or merits. This step, though critical, cannot be segregated from the next two steps. For it paves the way for them to take place, ultimately leading to serious interference in, etc the constitutional order in the HKSAR. When considered within the entirety of the Scheme, it is clearly an abuse of the power under BL 73(2). The powers bestowed on them by BL 73(2) do not entitle the LegCo members to undermine the very foundation of the Basic Law, to seriously interfere in etc the constitutional order in the Region. Put very bluntly, those powers cannot possibly be used by them to drive the HKSAR to destruction.
141. Mr Erik Shum, for D17 and D38,[59] takes several main points in developing the applicants’ case.[60]
142. First, Mr Shum summarizes the prosecution case as one which alleges that legislators failing to scrutinize the merits of the budget is unlawful by itself. However, that is simply not the prosecution case. We reiterate that the proper way to assess the Scheme is to view it in its entirety. It is quite wrong to isolate the step of vetoing budgets indiscriminately from the next two steps with the ultimate aim of seriously interfering in, etc the constitutional order in the HKSAR.
143. Second, Mr Shum argues that there is no hierarchy or priority of different articles in the Basic Law. All the functions, duties and powers of the three branches of government must be looked at together and no compartment of the functions, etc is more important than the others. The oath prescribed by BL 104 is to uphold the Basic Law as a whole, and not only budgets. It is therefore entirely legitimate for legislators to take into account extraneous matters when examining the budgets. They are free to vote for or against them based on political demands. Specifically, universal suffrage is the ultimate aim of selecting the Chief Executive and forming the LegCo. Pursuing universal suffrage is also upholding the Basic Law. For the LegCo members to take into account political demands, including universal suffrage, cannot possibly be an abuse of power under BL 73(2).
144. Mr Shum further submits that it is entirely legitimate for the LegCo members to exercise the power of “controlling the purse” to hold the Chief Executive and the Government accountable. Holding them accountable to the LegCo is after all the constitutional design of the Basic Law.
145. In our view, how one article of the Basic Law interacts with another is evidently a matter of construction. Under the contextual and purposive approach, the Basic Law must be construed as a coherent whole. It fundamentally determines the interplay between different articles. Relevantly, there are articles in the Basic Law which define the limits of functions and powers conferred by other articles. Construing them purposively, the latter must be read subject to the former. For example, BL 11(2) mandates that no laws enacted by the LegCo shall contravene the Basic Law. Correspondingly, BL 73(1) empowers the LegCo to enact laws in accordance with the provisions of the Basic Law. Reading the two articles together, the LegCo cannot pass a law which, say, purports to change the legal status of the HKSAR under BL 12.
146. We have already elucidated the contents of the duty encapsulated in the oath prescribed by BL 104. We agree that it must cover the entire Basic Law. It is precisely because of this holistic approach that we hold, as a matter of interpretation, the LegCo members are under a constitutional duty under BL 104 and the LegCo Oath to uphold the constitutional order in the HKSAR when exercising their powers and functions, including examining and approving budgets.
147. The rest of Mr Shum’s submissions calls for a closer look at the budgetary process.[61]
148. For each fiscal year, the Government lays before the LegCo the budget giving estimates of revenue and expenditure. The Financial Secretary delivers the budget speech, outlining the budgetary proposals and moving the Second Reading of the Appropriation Bill, which gives effect to the annual expenditure proposals contained in the budget. The Finance Committee of the LegCo holds special meetings to examine the budget. Upon resumption of the Second Reading of the Appropriation Bill, members may speak on the budget and the Government will respond to members’ speeches.
149. Before they can meaningfully vote to approve or refuse to pass the budget, thus fulfilling the vital function of overseeing the Government’s revenue and expenditure, and thereby holding the Government accountable in that regard, the LegCo members must examine the merits of the budget rigorously and carefully. The exercise goes well beyond the figures or estimates proposed. Bearing in mind the fiscal outlook presented to ground the budget, the LegCo members study the fiscal policies or rationale adopted for the allocations of public funds and expenditure to see if they are justified. They assess the strengths or weaknesses of initiatives proposed to address fiscal challenges ahead. They consider the measures to enhance or promote social and economic development, or proposals to strengthen public services to suit the needs of society, to see if the public expenditure allocated is commensurate with the benefits that they may reap. Examining the merits of the budget by reference to the above and other fiscal considerations to see if it warrants their approval must form the core of the LegCo members’ powers and functions under BL 73(2). It is essential to its function to hold the Government accountable in relation to fiscal and related matters under BL 64. In performing that core function, the LegCo members are subject to the overarching constitutional duty to uphold the constitutional order in the HKSAR.
150. By definition, extraneous matters that do not concern the contents or merits of the budget are irrelevant to the LegCo’s examination of the merits of the budget or its function to hold the Government accountable on fiscal and related matters. Taking into account those matters thus departs from the above core function. Since it is a constitutionally assigned function, the departure needs to be justified by the Basic Law. The thrust of the applicants’ case, as advanced by Mr Shum, is that it is justified by reasons of (1) holding the Chief Executive or the Government accountable and (2) pursuing political agenda, including universal suffrage provided for in the Basic Law.
151. We will consider accountability first.
152. As seen, the constitutional design in the Basic Law is to make the Government accountable to the LegCo. It reflects the democratic value that policies, actions and decisions of the executive are subject to critical scrutiny by a legislative body, constituted by election, representing the interests of the constituencies and the wider interests of society. Cf: Joanna Cherry QC v Advocate General for Scotland [2020] SC 37, per Lord Drummond Young at [99]. One of the ways for a modern legislature to hold the executive accountable is to “control the purse”. By exercising authority over the approval or disapproval of the government budgets, the legislature may hold the executive accountable in relation to fiscal matters, and the policies, projects and measures that require public funding. As demonstrated, the Basic Law has already conferred on the LegCo such a power to make the Government so accountable.
153. The question thus boils down to this: whether the LegCo members can take into account extraneous matters when examining budgets to hold the Chief Executive or the Government accountable for something else other than fiscal and related matters. In this regard, it is the applicants’ own case that the budget covers almost every aspect of the Government’s policies and operation.[62] That proposition the respondent does not seem to have disputed. In the circumstances, what is the “something else” that the LegCo has to make the Chief Executive or the Government accountable for by taking this route? The applicants’ answer is not entirely clear. Moreover, the applicants’ arguments, upon a closer scrutiny, give rise to two further questions.
154. Mr Shum refers to the Chief Executive’s serious dereliction of duty as an extraneous matter that the LegCo members may legitimately take into account. He argues that in such scenario, the LegCo members should be at liberty to veto the budgets to force him or her to resign. However, as seen, BL 73(9) has already provided for such a situation. The mechanism for making the Chief Executive answerable for serious dereliction of duty is already there. It begs the question: does the Basic Law permit the LegCo members to take another route of vetoing budgets to hold the Chief Executive answerable for serious dereliction or other serious failures of duty by forcing him to resign?
155. Mr Shum next argues that the LegCo members are entitled to make the Chief Executive and the Government listen to political demands when examining the budget. As seen, the LegCo members can do so if the political demands are fiscally related. However, if they are not, given the wide powers under BL 64 and BL 73, other avenues are plainly open to the LegCo members, by, say, holding debates (BL 73(6)), and raising questions (BL 64 and BL 73(5)). A similar question arises: does the Basic Law permit the LegCo members to take that route for making the Chief Executive or the Government accountable in relation to such or any non-fiscally related political demands?
156. The question that we have distilled at [153] is self-evidently of great constitutional significance. So are the further questions we have identified at [154] and [155]. They potentially have a momentous impact on how the LegCo performs its key constitutional function of subjecting the executive to accountability in the executive-led political system. They call for a proper interpretation of the relevant provisions of the Basic Law; a thorough and careful analysis of that function; and what the notion of accountability in the constitutional context of the Basic Law entails. However, we are not assisted by the parties’ submissions which, with respect, seems to us to be rather superficial. Consequently, we have not been able to give the questions a mature consideration that they clearly deserve before arriving at any definite views. We will therefore refrain from doing so. In any event, even if the applicants’ contentions were correct, it would not help them.
157. Proceeding on the assumption that the LegCo members can take into account extraneous considerations in examining budgets to make the Chief Executive or Government accountable for non-fiscal matters, such a power must still be exercised in accordance with the provisions of the Basic Law. The extent to which the LegCo members may take into account extraneous matters is necessarily subject to all constitutional requirements laid down in the Basic Law. The first and foremost requirement is the overarching duty not to act in contravention of their constitutional duty to uphold the Basic Law and bear allegiance to the HKSAR, including the duty to uphold the constitutional order in the Region, under the LegCo Oath. If they do, the departure from the core function of examining the merits of the budgets by taking into account those extraneous matters is not justified.
158. On the facts of the present case, the extraneous matters were the “Five Demands”, the contents of which evolved over time. Despite the evolution, forcing the Chief Executive to resign had always been there which, viewed in the entire factual context, is exactly the third step of the Scheme, with the ultimate aim of seriously interfering in, etc the constitutional order in the Region. For the LegCo members to take into account those extraneous matters or even pursue them in the pretext of examining budgets clearly violates their duty to uphold the constitutional order in the Region under the LegCo Oath. It is impermissible.
159. Turning secondly to political demands, the reliance on universal suffrage, which appears at the forefront of the applicants’ arguments, does not assist them either. Striving for universal suffrage coincides with the ultimate aim of the political development envisaged in the Basic Law. One must however act within the constitutional framework of the Basic Law. Any change of the methods for selecting the Chief Executive and forming the LegCo is governed by the relevant provisions in the Basic Law. The NPCSC has already laid down the roadmap for future development in a series of interpretations and decisions, cumulating in the then most recent 8.31 Decision. It is not entirely clear from the evidence what the applicants’ case on universal suffrage as one of the “Five Demands” was. It would appear that they were not satisfied with the pace of the political development so far, including the 8.31 Decision. Whatever views one might have, the pursuit for universal suffrage does not entitle him to embark on a plan such as the Scheme for the purpose of seriously interfering in, etc or destroying the constitutional order in the Region. For the LegCo members, they cannot do it when purportedly performing their powers and functions constitutionally assigned to them, including BL 73(2) or BL 64, without committing a breach of their duty to uphold the constitutional order in the HKSAR. The same is equally true for other political demands.
D6. Issue 2 – whether the Course of Conduct is a prohibited act
160. We now come to the issue of whether the Course of Conduct is a prohibited act within the meaning of NSL 22(3).
161. Mr Shum submits that the built-in mechanism in BL 50 ‑ 52 allows the deadlock between the Chief Executive and the LegCo over the budgets to be resolved. Serious consequences might flow from the dissolution of the LegCo, re-election of a new LegCo and resignation of the Chief Executive. However serious they might be, they are constitutionally provided for. As such, they could not be equated with the subversive consequences in NSL 22(3). Put differently, the subversive consequences in NSL 22(3) could not possibly include the prescribed consequences in BL 50 ‑ 52.
162. However, this argument completely ignores the purpose of the Course of Conduct, which is to seriously interfere in, etc the constitutional order in the HKSAR by triggering the mechanism with the consequences in BL 50 ‑ 52. That mechanism together with those consequences are but a means to achieve the subversive consequences stipulated in NSL 22(3).
D7. Issue 3 – whether the non-intervention principle applicable
163. Finally, on actus reus, Mr Shum relies on the non-intervention principle and submits that the court should not interfere with the budgetary process, which concerns political matters. If there are any differences resulting in a deadlock, let the public decide via re-election of the new LegCo in accordance with the mechanism in BL 50 ‑ 52.
164. Under the non-intervention principle, which is well established under the common law, the court respects and recognizes the exclusive authority of the legislature in the conduct of its business. The court will not intervene to rule on the regularity or irregularity of the internal processes of the legislature but will leave it to determine exclusively for itself matters of this kind. However, it is important to recognize that the principle is necessarily subject to constitutional requirements. See Leung Kwok Hung v President of the Legislative Council of the Hong Kong Special Administrative Region (2014) 17 HKCFAR 689, [27] ‑ [32]; Chief Executive of the HKSAR v President of the Legislative Council, per Cheung CJHC (as he then was) at [22] ‑ [25].
165. As demonstrated, the exercise of powers and functions constitutionally assigned to the LegCo members is subject to the overarching constitutional duty to uphold the Basic Law and bear allegiance to the HKSAR under the LegCo Oath, including the duty to uphold the constitutional order in the Region. Where there is a breach of that duty, such as the present case involving the Scheme and the Course of Conduct, legal consequences will follow. Determining if there is such a breach and what the legal consequences are, including criminal liability under NSL 22(3), lies within the judicial authority exclusively assigned to the court by the Basic Law: see Chief Executive of the HKSAR v President of the Legislative Council, per Cheung CJHC (as he then was) at [32]. The non-intervention principle does not apply.
166. This disposes of the 4th Common Ground.
D8. Issue 4 – subversive intent
167. Finally, we come to subversive intent.
168. Mr Shum complains that the Trial Court erred in finding that once the prescribed consequences under BL 50 ‑ 52 are triggered, then automatically, without more, the conspirators had the specific intent to subvert. It is because there could not be an intention to subvert if the intention is to bring about the consequences that are expressly provided for in the Basic Law. A subversive intent must be causing something beyond the contemplation of the Basic Law.
169. However, the purpose of the Scheme and the Course of Conduct was to seriously interfere in, etc the constitutional order in the Region by triggering the consequences provided for in BL 50 ‑ 52. The subversive consequences in NSL 22(3) then follow. It means 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 that purpose in mind. That is, in our view, what the Trial Court meant in their finding on mens rea.
170. This disposes of the 5th Common Ground.
D9. Conclusion
171. To sum up:
(1) The Scheme is conceived, advocated and pursued by D1 as a “constitutional mass destruction weapon” for the purpose of toppling the constitutional order in the HKSAR. As such, it is an unlawful means within the meaning of NSL 22. The Course of Conduct seeks to implement the Scheme by using the mechanism in BL 50 ‑ 52 to achieve the subversive consequences stipulated in NSL 22(3). It is a prohibited act within the meaning of NSL 22(3).
(2) When a LegCo member takes the LegCo Oath pursuant to BL 104, he assumes the overarching constitutional duty of upholding the Basic Law, including the constitutional duty to uphold the constitutional order in the HKSAR. He cannot act in breach of that duty when he purports to perform his official powers and functions, including those under BL 73(2) and BL 64. If a LegCo member joins the Scheme and participates in the Course of Conduct, he must have necessarily acted in breach of his constitutional duty to uphold the constitutional order in the Region.
(3) If an accused, including a LegCo member, agrees to join the Scheme and participate in the Course of Conduct with the subversive intent as explained above, he will be guilty of the offence of conspiracy as charged.
172. We now turn to the other grounds of appeal.
E. Errors of fact-finding
173. In advancing this ground, all the applicants complain firstly, that the adverse factual findings made by the Trial Court were erroneous and, secondly, that the inferences it drew were not irresistible inferences. The applicable general principles on how the Court of Appeal approaches such complaints are settled. Briefly stated:
(1) Recognizing that it does not enjoy the advantage of receiving the evidence at first hand as the trial court did, the Court of Appeal will not lightly disturb findings of facts and credibility made by that court, unless it is satisfied that the findings are plainly wrong, in which the case, it must interfere: Ting Kwok Keung v Tam Dick Yuen (2002) 5 HKCFAR 336, per Bokhary PJ at [42]; HKSAR v Egan (2010) 13 HKCFAR 314, per Ribeiro PJ at [194].
(2) Where the primary facts are such that the trial court is entitled to draw the adverse inference as the only reasonable inference, the Court of Appeal will not intervene unless that court has misunderstood the primary facts or has erred in its consideration of those facts.
E1. Overview of the factual matrix
174. In considering the specific findings and inferences made against each of the applicants, it is important to bear in mind five main features arising from the Main Findings set out in Section B5 that are applicable to them generally. They form the factual matrix to the exercise at hand.
175. First, the Trial Court found that the purpose of the Project was to finally shut down the Government, forcing the CPG to dissolve the LegCo, establish a provisional LegCo and then actually declare the end of the “one country, two systems” policy.[63] Further, the Trial Court found that by March and April 2020, D1 had made it very clear to the public that his aim and purpose was to use the Scheme to destroy or overthrow the existing political system and structure of the HKSAR established under the Basic Law and the “one country, two systems” policy.[64]
176. These findings are important for two reasons:
(1) According to the prosecution case, the conspiracy was built on the Project in which D1 played a pivotal role. The ultimate aim and purpose of the Project related by him to the public was plainly a factor that the Trial Court could justifiably take into account. D1’s publicly pronounced “ultimate aim” would be relevant when it considered if any of the applicants was a party to the conspiracy, if existed. Depending on the evidence, the Trial Court might find that although an applicant had heard or known about the ultimate aim of the Project, they never shared D1’s intention to use the Scheme to undermine, destroy or overthrow the existing political system and structure of the HKSAR. Or the Trial Court might find that he had indeed joined the Scheme with such an intention in mind.
(2) These findings are also material to the assessment of any purported exercise by any applicant, if elected to the LegCo, of the powers to indiscriminately veto the budgets under the Basic Law. That is to say, if he intended to uproot the constitutional order in the HKSAR, or to cause serious interference to the operations of the Government, contrary to the Basic Law.
177. Second, the Trial Court found that the intention to acquire a majority in the LegCo was inextricably bound up with the pursuit of the “Five Demands” which would never be accepted by the Government.[65] This finding is material to the assessment of each applicant’s case. For example, depending on the evidence, if an applicant knew that the Government would in no way accede to the “Five Demands”, any purported exercise by him of the powers under the Basic Law as a LegCo member to pursue this impossible aim would cast doubt on his true intention. It is up to the Trial Court to decide if it was a subversive act camouflaged as a purported exercise of the powers under the Basic Law or an act in the normal discharge of the functions of a LegCo member.
178. Third, as already pointed out, once the Trial Court was sure that an applicant was acting contrary to the Basic Law with an intent to subvert, the argument of mistaken belief falls away because one could not have genuinely believed that the Basic Law would allow a LegCo member when purportedly discharging his duty, to carry out any subversive act.
179. Fourth, the Trial Court found that the IWR Declaration was an additional mechanism to strengthen determination of the candidates in promoting D1’s objective, although it did not have any official status.[66] Anyone signing or endorsing it was a factor the Trial Court could and should consider when examining if he was a knowing party to the conspiracy.
180. Finally, the final coordination agreements for the Primary Election contained the statement that should the democratic camp win the majority in the LegCo they would make use of (or actively use) the powers under the Basic Law, including the power to veto the budgets, to force the Chief Executive to respond to the “Five Demands”.[67] When the Trial Court stated that the participants in the Primary Election all “knew perfectly well what the goals of the Project were”, understood in context, it was not only referring to the acquisition of a majority in the LegCo but also to indiscriminate vetoing of the budgets.
181. The above features firmly remain the anchor and provides the necessary context to properly understand the reasoning the Trial Court adopted for each applicant’s case, although it had used different descriptions or terms, sometimes in an abbreviated form in the course of its discussion.
182. We now consider the applicants’ cases in turn.
E2. Individual applicants
E2.1 D5
183. Mr Kwan argues that the Trial Court erred in conflating the agreement between D1 and D5 to organize the Primary Election, the purpose of which was merely to obtain a majority in the LegCo, with the agreement to indiscriminately veto the budgets. Mr Kwan stresses that D1 and D5 had no agreement on vetoing the budgets as it did not feature in their discussions. Further, during an interview by DW3 on 17 June 2020 (“Interview”), D5 said that D9 did not agree to bundle up the Primary Election with indiscriminate vetoing. His intention was thus clear. Mr Kwan further emphasizes D5’s unique role which was neither an organizer nor candidate of the Primary Election.
184. In finding that D5 was a party to the conspiracy, the Trial Court had, following a chronological order, examined in detail the evidence against him, including the posts of his Facebook account to promote the Campaign, the WhatsApp exchanges between D1 and D5, and the transcript of the Interview.[68] What emerge from the evidence includes the following:
(1) D5’s Facebook post on 10 May 2020 showed that he was aware of the existence of the coordination agreements of the five geographical constituencies in which references to “use” or “actively use” the vetoing power were made.
(2) He was aware of the IWR Declaration.
(3) At the Interview, D5 mentioned that:
“14. … I reckon that, I would like to refer to a-a previous conversation by ‘Laam Chau Bro’, that is what he referred to as the ‘iron triangle’, namely, the legislature, the streets and international, can’t do without any one of them, and this is the ‘iron triangle’. Well, this is a very real thing, when you look at past history, the process which countries evolved from being a totalitarian state to a democratic state, basically you will always find the presence of this ‘iron triangle’. Not one of these would be missing. They would definitely resist on the streets, also they would definitely resist in the legislature, they would utilize international pressure. Well, we hope we are able to do this as well …”[69]
(4) On 9 May 2020, D5 wrote on the Campaign Facebook and Instagram:
“I would say, that’s why we need 35+ more, to force the Chinese Communist Party to interfere, and to render the pro-democracy camp’s to have a just cause …”
(5) On 10 May 2020, D5 called for the support of the candidates who embraced “mutual destruction” on social media.
(6) After the promulgation of the NSL, D5 on 9 July 2020 re-posted in the Campaign Facebook D1’s article which referred to the Primary Election, the obtaining a majority in the LegCo and as well as the vetoing of budgets.
185. Contrary to Mr Kwan’s submissions, which focus on isolated episodes out of context, the totality of the evidence clearly entitles the Trial Court to find that:
“D5’s agreement with D1 was the same as the one which D1 had with others, so that the former and the latter were a single common design.”[70]
Mr Kwan has failed to satisfy us that the Trial Court’s finding against D5 is plainly wrong.
E2.2 D8
186. In his written submissions, Mr Pun criticizes the Trial Court for failing to consider the evidence in D8’s favour by virtually re-litigating the matters afresh and urging upon us a conclusion different from that of the Trial Court. This attempt is impermissible as we can only interfere only if its findings were plainly wrong.
187. Mr Pun challenges the Trial Court’s findings on:
(1) whether the Scheme existed;
(2) whether D8 was a party to the Scheme;
(3) whether D8 had the intention to subvert the State power;
(4) whether the Scheme, if carried out, would necessarily amount to serious interference as alleged by the prosecution.
However, none of these complaints is meritorious.
188. In relation to (1), Mr Pun, placing emphasis on the words “will actively use” in the coordination agreement for the Hong Kong Island constituency instead of “will use” adopted in the IWR Declaration, suggests that there was never any agreement to use the Basic Law power to indiscriminately veto the budgets. In rejecting this submission, the Trial Court stated that the suggested difference was “a matter of no moment as a result of the IWR Declaration” which was an “amalgamation” of the coordination agreements and supplementary to them.[71] It was entirely reasonable for the Trial Court to so conclude.
189. As to (2), the Trial Court had considered in detail all the relevant evidence, including the following, and had come to the view that D8’s conduct demonstrated a consistent and common theme, that is, D8 would veto the budgets in order to force the Government to respond to the “Five Demands”:[72]
(1) his presence at the press conference held by the CP on 25 March 2020 wherein the party leaders vowed to veto the budgets;
(2) his participation in the CP’s preparatory meeting for the press conference;
(3) his statements on the D100 radio programme on 15 June 2020;
(4) his participation in the CP’s election rally;
(5) the forms and election platform he submitted in relation to the Primary Election;
(6) the contents of his Facebook on 23 June 2020;
(7) his statements made at the Hong Kong Island Election Forum on 27 June 2020; and;
(8) his participation in the CP’s Promotional Video taken before the Primary Election.
In light of the totality of the evidence, the Trial Court was entitled to reject D8’s claim that his public statements were “mere election rhetoric”.
190. In respect of (3), it was accepted that the CP, of which D8 was a member, had endorsed the IWR Declaration and both D8 and the CP had stated in public about vetoing the budgets or had expressed similar sentiment. So the question was what D8’s true intention was despite those public statements. Mr Pun complains that the Trial Court failed to appreciate that D8’s willingness to “follow the CP’s line on vetoing so as to fulfill his dream of becoming a legislative councilor”[73] could and should be separated from his real stance to be taken on the budgets if elected. However, the resolution of what was D8’s true intention was a matter for the Trial Court. Particularly important was the Trial Court’s assessment of D8’s credibility and the relative weight the Trial Court attached to the different pieces of evidence. We cannot discern any error, let alone any error that is plainly wrong, that the Trial Court had made.
191. As to the suggestion of the CP’s “changed stance” after the enactment of the NSL, the Trial Court had considered, inter alia, the statements in the election materials provided by D8 to the organizers of the Primary Election, revised in response to the promulgation of the NSL, but noted that the first pledge was titled “Strive for majority to actualize Five Demands”. In the end, the Trial Court concluded that the platform was essentially the same as the pre-NSL one and what was done “was just a calculated move taken with a view to reduce the risk of its candidates being disqualified.”[74] This conclusion, we consider, was unimpeachable in view of the entirety of the evidence.
192. Lastly, in relation to (4), Mr Pun argues that D8 was not trying to paralyze the Government. However, as found by the Trial Court, D8 must have been aware that the “Five Demands” “was a condition that the Government would not accept”.[75] In the circumstances, and given the Main Findings, and in particular the five features identified in Section E1 above, the Trial Court’s conclusions cannot possibly be said to be erroneous requiring our intervention.
E2.3 D10
193. Mr Cheung complains that the Trial Court erroneously relied on (1) documents stored in a notebook computer seized from D10’s District Council office; (2) the IWR Declaration posted by other candidates; (3) D10’s leaflet “A Ray of Light”; (4) D10’s statements made online or on public occasions; and (5) Clause 2 of the nomination form for the Primary Election, to infer that D10 had the necessary intent and was a party to the conspiracy.
194. As to (1), we have examined the relevant photographs and the admitted facts. The computer in question was a portable notebook computer placed on a desk in D10’s office at the time of seizure. Although it would be the case that D10 might probably have received information relating to the Project in which she participated, given that there was no further evidence as to who had access (or exclusive access) to the office, nor any evidence as to who had control (or exclusive control) over the computer, with respect to the Trial Court, we consider that more should have been articulated in the Reasons for Verdict as to how they came to their conclusions regarding this piece of evidence.
195. Further, even if D10 had access to the computer, the fact that documents bearing other candidates’ names were found therein would not necessarily mean that she had read them, nor had necessarily endorsed or agreed to the contents. The same applies to those documents found in the computer the authorship of which was unknown or not proven.
196. However, despite our observations above, the position is different in connection with the document entitled “Project 35+ Majority in LegCo Co-ordination Mechanism of the Democracy Camp in Hong Kong Island (Draft)”, a copy of which was found in the notebook computer seized from D10’s office. It is because PW1’s evidence was that D1 had circulated a copy of the Draft after the first CM; and D10 had sent a representative to attend that meeting. Thus, although there was no evidence as to who had control over the computer, it did not diminish the evidential value that such a document was found in a computer in D10’s office. Since D10 was then running for the Primary Election, in the absence of contrary evidence, it could be reasonably inferred that in the normal course of events, the contents of the document must have been brought to D10’s attention if she herself had not seen it on the computer.
197. For (2), while the IWR Declaration showing D10’s name posted by D36 on his Facebook was a piece of evidence relevant to the consideration of whether D10 had endorsed the Declaration, that alone would not be sufficient. Also pertinent to this consideration was the fact that no copy of the Declaration was ever found in the computers seized in connection with D10’s arrest and that D10’s name was not amongst the first 10 names on the list. The significance of the former was obvious whereas the significance of the latter was that according to D37, the initiators of the IWR Declaration had obtained the consent of the first 10 persons on the list for inclusion of their names therein. In other words, since D10 was not amongst the first ten, there was no evidence that she had been contacted by the initiators.
198. Nonetheless, we note that the Trial Court had considered the statements made by D1 and D18 at the 9/7/2020 Press Conference about the vetoing of budgets. As correctly pointed out by the Trial Court, D10 was present when the statements were made. While as the Trial Court observed, others’ words did not necessarily represent D10’s position,[76] it remains a fact that she must have heard what others said on that occasion. In the circumstances and in the absence of contrary evidence, it is disingenuous to suggest that D10 was not aware of what the “ultimate aim” of the Project was. This is particularly so in light of the Main Findings.
199. In respect of items (3) and (4), they were D10’s own words and conduct. There is nothing which suggests that the Trial Court had improperly considered the evidence.
200. At the 9/7/2020 Press Conference, D1, in response to the then Secretary for Constitutional and Mainland Affairs’ comment as to the lawfulness of the Primary Election, said that: “even if the Legislative Council veto the Budget, according to the Basic Law, the Chief Executive can still exercise its function to dissolve the Legislative Council ...”.[77] Replying on what D1 said, Mr Cheung suggested that the Project only involved a conditional agreement. We disagree. When matters are examined in their proper context, and taking into account the Main Findings, Mr Cheung’s suggestion is feeble. The fact that D1 had used the words “even if” at the 9/7/2020 Press Conference is immaterial either. Similarly, the fact that D10 had included financial proposals in her political platform is irrelevant because the Trial Court had considered the overall circumstances and all that was said by D10 before finding her guilty as charged.
201. Finally, in respect of Mr Cheung’s emphasis on the absence of statements made by D10 expressly bundling up the Project with the “Five Demands”, we note that the Trial Court was alive to this fact.[78] However, having considered the evidence, including what D10 said at the election forum of the Hong Kong Island constituency held on 27 June 2020; the Declaration at Part II, Clause 2 of D10’s nomination form for the Primary Election; and what D10 wrote on her Facebook on 13 July 2020, the Trial Court was sure that D10 clearly “understood and aligned herself” with the objective of the Project and that she was a party to the conspiracy.
202. Looking at the evidence in the round, including the Main Findings, we do not consider the Trial Court’s conclusions to be plainly wrong.
E2.4 D14
203. Mr Ma takes the point that the Trial Court erred in concluding that D14 had agreed to indiscriminately veto the budgets.
204. D14 was the vice-chairman of the ADPL. In his oral testimony, he said that although he did sign the IWR Declaration, he would not use the vetoing power to force the Chief Executive to respond to the “Five Demands”. Mr Ma argues that since D14’s intention was made plain to his other party members in a WhatsApp group prior to his signing the Declaration and in the absence of any contradictory evidence, the Trial Court should not have found that D14 was a party to indiscriminately veto the budgets. Further, Mr Ma submits that as there was no express mentioning of “indiscriminately veto” in the IWR Declaration, an individual signatory’s interpretation of the Declaration might differ.
205. In convicting D14, the Trial Court relied on his attendance at the two CMs during which vetoing of the budgets and the pursuit of the “Five Demands” were discussed together with the Primary Election. Further, the Trial Court found that D14 must have received a copy of the coordination agreement. Having considered the entirety of the evidence, the Trial Court considered that D14 was aware of the “ultimate aim” of the Project.
206. The Trial Court further noted that D14 had stated in his election pamphlet that the pro-democracy camp had to obtain the majority and the vetoing power in order to achieve the “Five Demands”. As a result, the Trial Court found that D14 “had no reason to join the Primary Election if he did not share the impugned objective [of the Project]”.[79]
207. Regarding D14’s claim that the two ADPL teams worked independently, the Trial Court considered that such an assertion did not sit well with the evidence as to what had been reported in the WhatsApp exchanges in the ADPL group.[80] The Trial Court found that the teams could not have different stances on the pivotal issue of indiscriminate vetoing of the budgets. It drew support for this from the fact that D14 had published the contents of the IWR Declaration on his Facebook with his party logo and the names of D24 and himself.[81]
208. We detect no error in the Trial Court’s analysis of the evidence and the conclusions reached.
209. Lastly, since the Trial Court had found that D14 “knew that indiscriminate vetoing of the budget to compel the Government to respond to the ‘Five Demands’ was unlawful”[82] which finding they were entitled to make, Mr Ma’s suggestion of mistaken belief is ungrounded.
E2.5 D17 & D38
210. Since Mr Shum raises the same complaints concerning the Trial Court’s factual findings in respect of both D17 and D38, we will deal with the grounds relating to both in one go.
211. According to Mr Shum, the bases upon which the Trial Court arrived at the conclusions of guilt could be divided into three categories: the broad approach, the party approach and the individual approach. By broad approach, Mr Shum contends that the Trial Court simply convicted D17 and D38 because they had submitted the nomination forms and had participated in the Primary Election. By party approach, he submits that the Trial Court drew the guilty inference from the finding that the DP, to which both D17 and D38 belonged, had agreed to indiscriminately veto the budgets. Lastly, by individual approach, he argues that the Trial Court erred in relying on things done or not done and words said or not said by the individual applicants to find them parties to the conspiracy.
212. Before we go to the particulars of the complaints, it is important to bear in mind that the coordination process was an evolutionary process as found by the Trial Court. On the evidence available, this finding is one which the Trial Court was entitled to make. Thus, Mr Shum’s emphasis on the “notable absence” of the use of vetoing power at the conclusions of the CMs was a reference to the situation at that particular stage only. As the Trial Court observed, the CMs were not the end of the process. Relevantly, the Trial Court considered the four items in respect of which there was consensus after the CMs “had little to do” with how to achieve the “Five Demands”[83]. In other words, the Trial Court found that if there was no consensus in the use of the vetoing power to achieve the “Five Demands”, there was no need to focus on getting a majority in the LegCo. Likewise, if there was no consensus on the use of the vetoing power to fight for the “Five Demands”, there was no point in pursuing the Project with a condition that only those who endorsed the “Five Demands” could take part in the Primary Election. Such reasoning and findings of the Trial Court cannot be faulted.
213. With respect, Mr Shum’s argument that D1’s objective to indiscriminately veto the budgets or his objective of mutual destruction was an extraneous objective not shared by all, and that the IWR Declaration was not part of the Project, was based on isolated events taken out of the entirety of the evidence. Further, although it is correct to say that there was no “direct” evidence that D17 and D38 subscribed to the idea of indiscriminate vetoing, it is incorrect for Mr Shum to suggest that there was no evidence for the same because the Trial Court was entitled to act on the relevant circumstantial evidence for the drawing of inferences when dealing with this matter.
214. We now come to the Trial Court’s allegedly erroneous reliance on the representations made by D23 (Wu Chi-wai) in the election forum of the Kowloon East (“KLE”) constituency held on 4 July 2020, which was admitted under the co-conspirator’s rule. Having examined the evidence, we agree that D23’s reference would appear to be a reference to those present in that forum of KLE, and not to the candidates of the DP.
215. We also note, as highlighted by Mr Shum:
“The evidence (PW1, PW2 and D37) showed that the DP appeared to have reservations on the issue of vetoing because DP’s representative, Mr CHONG Wing-fai, attending NTE’s 2nd coordination meeting on D38’s behalf, had objected to the notion of paralysing the Government by indiscriminately vetoing the budget, and that in June 2020, after the IWR declaration was initiated online, D23 had expressly told PW1 that it would be unreasonable to veto the budget if it involved refusing projects beneficial to social welfare such as building hospitals and schools.”
216. However, as pointed out above, the Trial Court found as a fact that the coordination process was a continuing and evolutionary process. Thus, matters could not be taken out of context. For instance, while Mr Shum relies on D23’s initial concern expressed to PW1 about the bundling up effect, it was not disputed that D23 eventually signed the Common Programme of KLE which referred to vetoing the budgets. Further, although we accept that D23’s reference above might not be a reference to the candidates of the DP, it remains a stance announced by the Chairman of the DP in public. Mr Shum’s contention that the DP had no “unified stance” on indiscriminate vetoing of the budgets and his criticism that it was a mere speculation on the part of the Trial Court is, with respect, unfounded. The suggestion that when a political party nominates candidates to run for an election, it is not necessary for the party or for the party’s candidates to share a common view on an important matter relating to the election is quite unrealistic. Given D1’s public statements and the evolution of the scheme, and in the absence of contrary evidence, the Trial Court could not be criticised for finding, inferentially that the issue of indiscriminate vetoing must have been discussed amongst the DP’s candidates for the Primary Election.
217. Returning to the case of D17, her representative attended both CMs of the Kowloon West (“KLW”) constituency. There was no dispute that the issue of vetoing the budgets was discussed at the first of those meetings. At the second meeting, reference was made by D1 to his article on mutual destruction. Further, a copy of the KLW coordination agreement was retrieved from D17’s computer. It was stated in the document that every individual who joined the Project for KLW had to agree that if the pro-democracy camp was able to win the majority in the LegCo, they would actively use the power of the LegCo, including the power to veto the budgets, to force the Chief Executive to respond to the “Five Demands”. Plainly, Mr Shum’s argument that the Project only had the “simple intention of obtaining a majority in the LegCo” and that there was no “bundling-up” effect does not sit well with this statement.
218. Another matter which the Trial Court took into account was that D17 was then a serving LegCo member and was not unfamiliar with the operation of the Government. The Trial Court found that, given her experience, “she must have known that the Government would never agree to the Five Demands” and “she must be aware that indiscriminate vetoing of the budgets would result in a constitutional crisis with the effect of paralyzing the operations of the Government.”[84] We do not consider this finding to be erroneous. A LegCo member or not, the paralyzing effect of their intended actions is obvious.
219. Further, when D17 attended the KLW election forum on 25 June 2020, she expressly stated that the candidates of the DP would be willing to sign a written agreement if required by D1 and that the Chairman (D23) and all members of DP would engage all the power and means (including vetoing the budget) to fight for the “Five Demands”. Mr Shum emphasizes that D17 specifically used the term “within the constitutional framework” when talking about the exercise of the powers. Thus, she should not be taken to have agreed to the use of any unlawful means. We consider this complaint ungrounded.
220. Firstly, what D17’s true intention was could not be ascertained from just one phrase she adopted in a forum without regard to the entirety of the evidence.
221. Secondly, it should be remembered that at the material time, the 8.31 Decision had already been announced in public. In other words, as we have set out in Section D3 above, the NPCSC has already laid down the roadmap on the matter of universal suffrage. In the circumstances, the Trial Court was entitled to find that D17 was only making up excuses to paralyze the operations of the Government.[85]
222. Finally, there is no dispute that after the promulgation of the NSL, D17 participated in a street rally on 8 July 2020 together with her other DP members. During the rally, D23 said that the DP had joined hands with others to strive for a majority in the LegCo with a view to exerting the greatest pressure on the Government. We do not agree with Mr Shum that in the street rally, D23 “never mentioned … forcing the Government to address the Five Demands”. According to the transcript[86], D23 said:
“… the Democratic Party is participating in this…[indistinct] together with all democrats, (we) strive for 35+. (We) hope that in times when (there is) a majority in the Council, greatest pressure could be exerted on the Government, making it a must for the Government to respond. (It) must be made to understand that Hongkongers will never give up. …”
Although the words “Five Demands” were absent, plainly, when read in context, no one would consider that the reference “for the Government to respond” was to anything other than the “Five Demands”.
223. A few days after the street rally, D17 reiterated on her Facebook her commitment to act in accordance with the Scheme. D17 chose not to testify, which is her right. However, it would mean that there was no evidence from D17 to support her case that, despite what the DP or its Chairman said or did (sometimes in D17’s presence) and despite what D1 said in public, D17’s true intention in joining the Primary Election was a simple one. That is, she only wanted to make use of the coordination mechanism to see if she would get elected. If elected, she would vote on the budgets according to her own wishes and assessments without regard to D1’s and D23’s stance made in public.
224. In short, in view of the evidence available as a whole, we do not consider that we could intervene in the case of D17.
225. Insofar as D38 is concerned, although he did not attend any CMs, a representative attended on his behalf. There is no dispute that during the second meeting, his representative stated that the Central Committee of the DP had not authorized him to deal with the issue of indiscriminate vetoing. The Trial Court, based on the fact that there was a heated debate on the issue, found that, inferentially, the matter must have been brought to D38’s attention. We find no error in this.
226. Mr Shum criticizes the Trial Court for not giving any weight to the fact that D38 and another DP member had said in the election forum that they would not veto the budget if it related to spending for the underprivileged. Mr Shum contends that such statements illustrated two matters: (1) there was not a unified stance of the DP; (2) the statements reflected D38’s true intention concerning indiscriminate vetoing. With respect, the argument ignores the fact that the replies were given in relation to a purely hypothetical situation. Further, we note that when D38 gave his answer, he expressly prefaced it with, “No, if (it is) only (about) giving out thirty thousand dollars, can we vote against (it) …” Thus, D38’s answer was not given in the context of the pursuit of the “Five Demands”. In the circumstances, the Trial Court could not be criticized for not having attached weight to these assertions.
227. Concerning the debate notes found in D38’s residence, Mr Shum complains that there was no evidence that D38 had agreed to its contents. However, the relevance of the notes was not only about to what extent D38 adopted the same but also the fact that such had been prepared for D38’s use. If it was not the unified stance of the DP to veto the budgets, one would not expect the debate notes covering such matters to have been prepared for him. Further, contrary to Mr Shum’s submission, the Trial Court found that D38 did follow the debate notes on a number of important matters.[87] Mr Shum’s suggestion that D38 had adopted “a directly opposite position” vis-à-vis the notes is, with respect, ungrounded.
228. In summary, the Trial Court’s findings in respect of both D17 and D38 are not findings which we are entitled to intervene.
E2.6 D33
229. Mr Beel contends that the Trial Court erred in:
(1) finding that D33 was a party to the conspiracy when her evidence and that of PW1 was that the Project was impossible to accomplish and, in any event, D33 knew that she would be disqualified even if elected (the impossibility argument under s.159A(2) of the Crimes Ordinance;
(2) rejecting D33’s evidence; and
(3) finding that D33 had the intent to subvert.
We will consider these points in turn.
230. Section 159A of the Crimes Ordinance reads:
“159A. The offence of conspiracy
(1) Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—
(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or
(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,
he is guilty of conspiracy to commit the offence or offences in question.
(2) Where liability for any offence may be incurred without knowledge on the part of the person committing it of any particular fact or circumstance necessary for the commission of the offence, a person shall nevertheless not be guilty of conspiracy to commit that offence by virtue of subsection (1) unless he and at least one other party to the agreement intend or know that that fact or circumstance shall or will exist at the time when the conduct constituting the offence is to take place.”
231. In HKSAR v Harjani (2019) 22 HKCFAR 446, the Court of Final Appeal considered Lord Nicholls’ analysis of section 1 of the UK Criminal Law Act 1977[88] in Saik [2007] 1 AC 18, at [7], instructive:
“7. Under this subsection [1(2) of the Act] conspiracy involves a third mental element: intention or knowledge that a fact or circumstance necessary for the commission of the substantive offence will exist. ….”
Section 159A(2) of the Crimes Ordinance thus concerns a defendant’s intention or knowledge at the time of the conspiracy, not whether any intended fact eventually materialises.
232. In the present case, as far as D33’s intention at the material time was concerned, the Trial Court did not accept her assertion that she thought the Project could not be achieved and found otherwise:
“… In fact, we heard nothing of that view being mentioned in any of her election rallies, forums or interviews. …”[89]
and
“… despite D33’s testimony in Court asserting that obtaining a majority of 35+ was an impossible task at that time and that she was running the Primary Election with the intention of encouraging a big turn out, none of what she did and said throughout suggested that to be the case.”[90]
Accordingly, on the Trial Court’s factual findings, we do not see how section 159A(2) of the Crimes Ordinance could be said to be applicable in D33’s case.
233. In any event, we have gone through D33’s summary of evidence and the Trial Court’s analysis. There was clearly ample evidence to support the findings that D33 was a party to the conspiracy. The Trial Court’s analysis was in order.
234. In respect of the other points, we note that Mr Beel has, in the written submissions, traversed all the Trial Court’s relevant findings pertaining to D33’s guilt. However, having considered the entirety of the evidence before the Trial Court, we do not see how their findings could be said to be plainly wrong.
235. For example, it was not in dispute that D33 had attended both CMs for her constituency, had published a number of posts on her Facebook which included the IWR Declaration, a video emphasising on the importance of obtaining a majority in the LegCo in order to confront Beijing, and a statement on 14 July 2020 that it was important to persuade the moderate voters to use the LegCo election to trigger a constitutional crisis. In the election forum on 28 June 2020, D33 had also stated that the LegCo was not a hall for discussion but a place for resistance. With such evidence, and given the Main Findings, it was not surprising that the Trial Court found:
“ … In our view what D33 wanted was, as she said in her evidence, the demand for universal suffrage for both the Chief Executive and the LegCo. What D33 really wanted was a completely new political system and structure, as she said repeatedly that the existing one had been dysfunctional and unable to serve the people of Hong Kong. In order to achieve that, she wanted a big turn out which could send her to the LegCo to resist and to break the deadlock and at the same time the outside world would take heed of that.”[91]
“… We had no doubt that the political tension or constitutional crisis D33 referred to was the same crisis that D1 had been advocated for. …”[92]
“… On 4 August 2020, D33 published an article on the Los Angeles Times. D33 stated that with an opposition majority, that would create a nightmare scenario for Beijing as it would be able to veto all government’s proposal of budgets. In fact, the stance adopted by D33 throughout the project was very consistent. We had no doubt by stating all these remarks, D33 wanted to undermine not only the duties and functions of the Government, but the legitimacy of it as well. …”[93]
236. In consequence, there is no merit in Mr Beel’s complaints.
E2.7 D36
237. Primarily, Mr Ma contends that the Trial Court erred in taking D36’s knowledge of the Scheme as proof of him being a party to it. Further, Mr Ma complains that the Trial Court wrongly rejected the consistent evidence from PW1, PW2 and D36 himself that he would not veto the budgets indiscriminately. Thirdly, Mr Ma argues that the Trial Court erred in taking D22’s stance as the stance of D36 by merely relying on the fact that they belonged to the same political party, People Power (“PP”) when D36’s clear evidence was that he and D22 acted separately for the Primary Election.
238. Again, we have revisited D36’s summary of evidence as he chose to testify. We find that the Trial Court was entitled to make the findings based on the evidence adduced before them, including the following.
239. Firstly, despite D36’s claim that he did not share D1’s intention to veto the budgets indiscriminately and that he had his own election platform for the Primary Election, it was undisputed that on 22 March 2020, a few days after the second KLE CM, PP published on the party’s Facebook a post titled “People Power concurs Primary Election with a common political action agenda.” (人民力量贊成有共同政治行動綱領的初選). Although D36 sought to explain that what he meant by “uniform action” was that a LegCo member should act responsibly by attending meetings and not about voting against a particular piece of legislation or a budget, it was up to the Trial Court to decide whether what D36 said was credible having considered all the evidence.
240. Secondly, there were minutes of a meeting of the PP’s executive committee during which it was reported that a discussion took place in the New Territories East (“NTE”) CM of changing the phrase from “will use” to “will actively use” in relation to vetoing the budgets.
241. Thirdly, D36, in a street rally held in June 2020, mentioned that:
“This time, everyone participates in the Primary Election which has already put aside the interests of the individuals or parties. No matter who will be qualified or who will be elected, (we) must work together in the future and resist to the end, including what we said earlier that we will use the power bestowed to the Legislative Council member by the Basic Law to veto the Budget, forcing Carrie Lam Cheng Yuet-ngor’s government to restart political reform and respond to the Five Demands (so as to) achieve dual universal suffrage”
242. Fourthly, D36 stated in a video in July 2020 that candidates for the Primary Election would work together to vote against the budgets in compelling the Government to restart the political reform and to respond to the “Five Demands”. While D36 suggested in his testimony that he was then merely trying to explain to the public what was the use of the 35+ seats, it was for the Trial Court to make the assessment as to what his true intention was.
243. Fifthly, the Trial Court noted that the IWR Declaration was posted on the party website and D22 had attached a copy of the coordination agreement to the nomination form. Therefore, although D36 stressed that he had never said anything which suggested that he would veto the budgets and denied being a party to the conspiracy, the assessment of these factual matters and the inferences to be drawn were entirely matters for the Trial Court. We could not detect any obvious errors in the assessment and findings.
244. In conclusion, Mr Ma’s complaints are not made out.
E2.8 D37
245. D37 asserted in his testimony that he did not believe that the Project would succeed as it was not possible to obtain 35+ seats in the LegCo given the Government’s disqualification mechanism. His case was absent this intention, he could not have been a party to the conspiracy. Before us, Mr Kwan contends that the Trial Court erred in:
(1) rejecting D37’s evidence concerning the absence of the relevant belief and intention (a) notwithstanding that the contrary had never been put to D37 by the prosecution: Lo Chun Nam v HKSAR (2001) 4 HKCFAR 1, and (b) wrongly relying on D1’s pre-charge state of mind to prove D37’s belief; and
(2) finding D37 to be a party to the Scheme as it was not an irresistible inference.
246. As we have pointed out when dealing with the case of D33, what is material in a charge of conspiracy is the accused’s intention and belief at the time of the agreement, not whether the intended consequence or fact would eventually materialize. In the present case, there was ample evidence as to what D37 said and did during the currency of the agreement particularised in the charge. These pieces of evidence would no doubt form the essential background against which the Trial Court was to assess D37’s evidence given in court, which was basically an assertion that whatever he had done or said at the material time, his true belief or intention was otherwise. That is, he believed that the Project would not succeed or that he did not intend the Project to succeed. Plainly, if one’s words and conduct was opposite to or inconsistent with one’s asserted belief or intention, what actually was or might have been in that person’s mind at the material time would necessarily be a matter for the tribunal of fact after considering all the evidence.
247. As to Mr Kwan’s complaint concerning the rule in Browne v Dunn, it should be noted that the present case was not one in which D37’s asserted belief was never challenged by the prosecution. Instead, as accepted by Mr Kwan in his written submissions, “At trial, the Prosecution explored whether D37 indicated his belief that 35+ would not materialise to others on different occasions and why he did not do so in the election forum held on 28 June 2020.” Accordingly, D37 was given an opportunity to address the matter and his explanation was that “he wished to be more polite as the forum was organised by people who believed in 35+”.
248. In essence, Mr Kwan’s complaint boils down to this: the prosecution had not suggested to D37 that his asserted belief was untrue and that he indeed harboured the necessary intention. On this matter, we should reiterate what this Court, differently constituted, stated in HKSAR v Leung Wai Kit [2023] 2 HKLRD 799:
“22. There is no absolute rule as to how a witness’s evidence should be challenged if it is intended to contradict it. The method and manner of the challenge will depend on a variety of factors and circumstances, including the subject and significance of the contradictory evidence; the status and quality of the witness, such as a child or vulnerable witness, or an evasive or unresponsive witness; and the nature and issues of the case. In a typical case, the cross-examiner asks questions of the witness that are sufficient to put the witness on notice that he intends to impeach the witness’s evidence on a matter and to provide him an opportunity to explain his position. Depending upon the subject matter, it does not necessarily involve a direct confrontation with the witness by examining the matter in minute detail. The challenge may be apparent by how the case is being conducted, the general line of questioning or the cross-examination of another related witness. It may not be necessary to put questions in cross-examination if a witness has given evidence about a matter that is patently incredible or if it has been made plain in some other manner that the evidence of the witness is challenged: Wong Wah Yee v HKSAR. Sometimes it will be sufficient for the ‘raised eyebrow’ approach to discharge the duty of counsel in this sense: Lo Chun Nam v HKSAR.”
249. As pointed out by the respondent in the written submissions, when cross-examining D37 as to why he did not post the IWR Declaration as a personal declaration on his own Facebook if it had nothing to do with the Project, the prosecution had said to him, “You didn’t do so, because you wanted to gather people to join hands, to get together, to veto the budget together, after getting a majority in LegCo, right?”, with which D37 disagreed. Clearly, prosecuting counsel had cross-examined D37 as to his asserted belief and D37 had been given a sufficient opportunity to address the matter. The fact that there was no direct confrontation nor the adoption of the phrase “I put it to you” does not diminish the intensity of the prosecution’s disbelief of D37’s claim. Nor could it be said that D37 was taken by surprise and was unaware that his assertion was not accepted by the prosecution. We accordingly find no substance in this complaint of Mr Kwan.
250. In respect of D1’s state of mind, we consider that the alleged breach of the hearsay rule is misconceived. It is pertinent to note that the impugned paragraph began with the words, “By [D37’s] conducts and utterances…” What followed was D37’s participation in the Primary Election, his posts on the Facebook and his co-initiation of the IWR Declaration. All such was D37’s own conduct and words. Thus, the reference to D1’s words was only to highlight the fact that both D1 and D37 intended there to be a majority in the LegCo and both were parties to the conspiracy.
251. As regards the IWR Declaration, Mr Kwan emphaises that it was separate from the Scheme and would constitute a separate conspiracy (if any) to veto the budgets. Whether it was such a case could not be determined without reference to the history leading to D37’s initiating the IWR Declaration. In this respect, the Trial Court had considered, among other things, D37’s evidence that he wanted to run for the Primary Election because it provided a good platform to promote his political idea and to elect legislators with the strongest willpower to resist; D37’s determination to fight for the “Five Demands”; his active role and proposal to use the word “veto” in the NTE CMs as well as his co‑initiating the IWR Declaration which highlighted the use of the power to veto the budgets.
252. Given the entirety of the evidence, and as pointed out by the Trial Court, particularly the date of the creation of the IWR Declaration and the similarity between the wordings used in the coordination agreement and those in the Declaration[94], the Trial Court was justified in finding as a fact that D37 must have received a copy of the coordination agreement and subscribed to the idea of indiscriminate vetoing of the budgets. It was also reasonable for the Trial Court to conclude that D37 was a knowing party to the conspiracy.
253. Finally, the Trial Court observed that on 21 June 2020 and 25 June 2020, D37 respectively published on his Facebook the slogan for his participation in the Primary Election: “Reject Colonisers, National Resistance against Tyranny” (拒絕殖民，民族抗暴) and an article stating that he would destroy the legislative system designed by the colonisers (同殖民者設計嘅議會制度攬炒到底). Further, the Trial Court highlighted the fact that, on 7 July 2020, D37 affirmed on his Facebook the determination to paralyze the LegCo.
254. In short, Court’s findings against D37 were amply supported by evidence. Mr Kwan’s complaints fail.
D2.9 D41
255. Simply put, Mr Pun argues that the Trial Court erred in finding that D41 was a party to the conspiracy by wrongly placing reliance on the following:
(1) the article titled “Striving for a Total Veto, Continuing to Resist Tyranny – Resolution of the League of Social Democrats (“LSD”) in Response to the Current Changes in the Political Situation in Hong Kong” (爭奪全面否決權持續不斷抗暴政 — 社會民主連線回應當前香港政治形勢變化的決議文) published in June 2020 by LSD, to which D41 belonged; and
(2) D41’s election leaflet for the Primary Election.
256. Having examined both documents, we consider that Mr Pun’s contention does not sit with the entirety of the evidence when matters are viewed in their proper context. Mr Pun’s argument, it would seem, is merely based on the respective absence of the word “indiscriminate” and the word “budget” in the documents. However, that would be taking things out of context. Although it is true that the word “indiscriminate” was absent in that article, LSD’s stance so announced was to “… exercise actively the power conferred on the Legislative Council by the Basic Law, including vetoing the Budget to force the Government to respond to the ‘Five Demands’ …”. That statement, made at a time when the Primary Election was to be held, and when read in context, did convey the clear message that LSD agreed to the Scheme. The Trial Court had also observed that the same article had been reposted on D41’s Facebook. As there was no contrary evidence from D41 given that he had elected not to testify, which is his right, the Trial Court’s conclusions could not be faulted. We do not see how the Trial Court can be criticized for misunderstanding the evidence or for placing undue weight on the said article.
257. Similarly, although as pointed out by Mr Pun, D41’s election leaflet “did not mention vetoing the budget at all”, it did, however, refer to, “… having full veto power in the Legislative Council …”. Therefore, when the leaflet was considered together with the entirety of the evidence, especially the Main Findings, there is no room to suggest that the Trial Court’s findings were plainly wrong.
E2.10 D47
258. At trial, the factual issues concerning D47 were:[95]
(1) not being a party to the conspiracy;
(2) no intention to veto the budgets indiscriminately; and
(3) no intention to subvert.
Mr Pang complains that the Trial Court erred in finding these factual disputes against D47.
259. Before concluding that D47 was a party to the conspiracy, the Trial Court had, inter alia, taken into account the following which they described as “abundant evidence”:[96]
(1) D47’s endorsement of the IWR Declaration and her own evidence that she agreed to the two points contained therein, that is, vetoing the budget in order to force the Chief Executive to respond to the “Five Demands” and not participating in the LegCo election if unsuccessful at the Primary Election;
(2) the contents of the poster (election platform) D47 attached to the nomination form for the Project;[97]
(3) the contents of the article (踏上這攬炒旅途) (“On the journey to mutual destruction”) written by D47 and published on 31 March 2020;[98]and
(4) what D47 said in the interview on 10 August 2020.[99]
260. The common theme of the above speeches and writings was that D47 would vote against all budgets and bills to force the Government to respond to the “Five Demands” amongst which she considered universal suffrage to be most important. As found by the Trial Court, D47 intended to bring about “a sea change in the political system”.[100] Further, contrary to her claim, the Trial Court concluded that D47 was not prepared “to negotiate with the Government or to make compromise”.[101]
261. Although Mr Pang puts emphasis on the fact that D47 did not take part in any CMs which he qualifies as a unique feature, clearly, one cannot isolate a single piece of evidence from the rest, especially on matters of inferences. Similarly, although Mr Pang repeats D47’s assertions as to her knowledge or lack of knowledge at the time, the primary facts remain these: she had endorsed the IWR Declaration, she had participated in the Primary Election, she had participated in the Resistance Camp Press Conference on 15 July 2020, and she had made statements via social media, in articles and during interviews, the contents of which, she agreed, was largely accurate.
262. In considering whether D47 was a party to the conspiracy, the Trial Court, instead of acting alone as she claimed, was entitled to consider all the above facts and the Main Findings.
263. As regards D47’s intention after the NSL was promulgated, the Trial Court had particularly considered a report of her rally held on 8 July 2020; her interview conducted by Playful Media on 8 July 2020 and the statement on her Facebook posted on 13 July 2020. The stance manifested was that D47 would “cause the tyrant regime to pay high prices”[102] and she would continue to fight. Such, the Trial Court found, was consistent with the theme in her article “攬炒的時代革新意義” (“New Implications of Mutual Destruction in the Age of Modern Reform”) dated 11 April 2020 and with what she said in her interview conducted by In-media published on 22 April 2020. In the former, D47 said that they would create a constitutional crisis by vetoing all motions from the Government whereas in the latter, she stated that they “must overthrow this regime, this government by all kinds of means or there won’t be any change.”[103]
264. Since D47 made no denial under cross-examination of what she previously said, the Trial Court, having considered all the evidence, concluded that:
“… D47 had the intention to subvert the ‘State power’ in the sense that she intended to bring about a serious interference and disruption of the Government’s function in order to bring about a new political system.”[104]
265. The above passage, though couched in a relatively condensed form, when read together with the Main Findings and in context, represented the Trial Court’s findings that:[105]
(1) D47 agreed with the other co-conspirators to indiscriminately veto the budgets;
(2) D47 did not believe that it was lawful to cause a constitutional crisis by indiscriminately vetoing the budgets;
(3) D47 merely used the BL 50 & BL 52 mechanism (dissolution of the LegCo and the Chief Executive stepping down) as a pretext to effect a “sea change” in the political system;
(4) D47’s true intention was to cause serious interference in the performance of duties and functions of the Government;
(5) the intended interference, in the circumstances, was not one prescribed under the Basic Law but was contrary to it, therefore unlawful; and
(6) since, in trying to cause the serious interference, D47’s intention was to “seriously undermine the legitimacy of the Government”[106], her intention to subvert was most evident.
266. In view of the evidence adduced, we do not consider these factual findings to be plainly wrong and we do not see any basis to intervene.
E3. Conclusion
267. For the above reasons, we hold that this ground of appeal attacking the factual findings by the Trial Court fails for each of the applicants.
F. Excessive judicial intervention
268. This ground of appeal is taken by D10, D37 and D47. It is convenient to first set out the general principles.
F1. General principles
269. In HKSAR v Lai Oi Yan [2016] 3 HKLRD 273, this Court, differently constituted, summarised the position as:
“51. Judicial interventions as a ground of appeal has led to the creation of a considerable body of case law. The test as to when this ground will lead to a conviction being quashed was stated by Power JA, in giving the judgment of the Court of Appeal in R v Yeung Mau Lam [1991] 2 HKLR 468. He said at p.473E–F:
The ultimate question for the consideration of an appellate court is whether the Judge’s conduct was such that it would have caused the informed bystander listening to the case to say that the defendant had not had a fair trial.
…
53. The starting point to understanding how to apply this test is to recognise the context in which the interventions take place. That context is the common law adversarial system of criminal justice where the judge does not have an inquisitorial role but rather stands aloof from the arena in which the legal representatives of the parties advocate on their behalf.”
270. Yet, it was observed that:
“56. But remaining aloof from the fray and not descending into the arena, in order to preserve the appearance of neutrality, does not mean that the judge is relegated to an entirely passive role. He is not. …
…
59. For a true expression of the judge’s role, common law courts, including our own, frequently quote the well known observations of Denning LJ from his judgment in Jones v National Coal Board [1957] 2 QB 55 where, at p.64, he said that the judge should ‘hearken to the evidence’ and that if the judge went beyond asking questions in order to clarify matters of evidence or exercising his powers for case management purposes then ‘he drops the mantle of a judge and assumes the role of an advocate; and the change does not become him well.’
…
67. When judicial interventions are a ground of appeal the first step of the appellate court is to examine them in context to determine whether they can be characterised as interventions properly made in accordance with Jones v National Coal Board principles. That is, whether they fall into the category of interventions that are made for the purpose of clarifying the evidence or are made for a legal procedural or evidential purpose, or are made in the exercise of a case management function. If they are made for any of these reasons then the judicial interventions will usually be proper and should not have impacted upon the fairness of the trial.
…
69. If the interventions are not excusable on Jones v National Coal Board principles then the appellate court will be concerned to see how these interventions have impacted on the fairness of the trial. One convenient means that appellate courts have employed to assess this has been to examine the effect of the interventions on the trial process. The effects with which the appellate court is concerned are those set out by Parker LJ in R v Hamilton [1969] Crim LR 486. …”
271. The Hamilton principles, which have been followed in Hong Kong[107]and which “look to the effect of the interventions on the key players in the trial process; the jury, defence counsel and the defendant himself” are these:[108]
“But the interventions which give rise to a quashing of a conviction are really threefold; those which invite the jury to disbelieve the evidence for the defence which is put to the jury in such strong terms that it cannot be cured... . The second ground giving rise to a quashing of a conviction is where the interventions have made it really impossible for counsel for the defence to do his or her duty in properly presenting the defence, and thirdly, cases where the interventions have had the effect of preventing the prisoner himself from doing himself justice and telling the story in his own way.”
272. Shortly stated, the context in which the interventions came about, including how the interventions took place and why there were such interventions (the National Coal Board principles), and the effect of the interventions (the Hamilton principles), are matters which the appellate court should consider when dealing with excessive judicial interventions as a ground of appeal, bearing in mind that the judge’s role in the common law criminal justice system is adversarial and that the ultimate question is whether an informed bystander would say that the defendant did not have a fair trial.
F2. Individual applicants
F2.1 D10
273. The complaint made by Mr Cheung is essentially this. The Trial Court intervened excessively when D10’s counsel cross-examined PW1 and PW2 when it had asked 15 and 13 questions respectively while counsel had only asked 38 and 20 questions. Mr Cheung contends that the questions were important as they related to whether D10’s participation in the LegCo Election after having lost the Primary Election was or was not in accordance with the Scheme and whether D10 felt obliged to follow D1’s ideas. Additionally, Mr Cheung submits that “the staggering volume of judicial intervention during the evidence of other defendants was such that an informed bystander would conclude that the defendants, including D10, did not receive a fair trial.”
274. Needless to say, the number of questions asked by the Court is not decisive as to whether there was excessive judicial intervention but yet, that seems to be the primary basis upon which Mr Cheung mounts his complaint. Further, we note that the context in which the allegedly unjustified intervention took place was when prosecution witnesses were cross-examined, not when D10 was giving evidence as she had elected not to testify, which is her right.
275. Although Mr Cheung submits that those were important questions, the substance relied on actually related to D10’s own intention or thoughts. Clearly, even if D10 had told others that she did not feel obliged to follow D1’s ideas, such would be hearsay evidence if the assertions were relied on as the truth.
276. Further, there was abundant and undisputed evidence that those who joined the Project should, according to the agreement, refrain from participating in the LegCo Election after losing the Primary Election. This evidence did not need to come from PW1. More importantly, the prosecution witnesses could not explain, without guesswork, why D10 took a particular course of action after losing the Primary Election. Therefore, their evidence did not seem to be relevant, contrary to Mr Cheung’s suggestion, nor admissible.
277. Although Mr Cheung did not see fit to put in the relevant transcript to support his submission and although the above analysis should be sufficient to deal with his complaint, we have taken the caution to go through the relevant transcript. Having done so, we see nothing there to be of assistance to Mr Cheung. Conversely, we note that Mr Cheung had been asked by the Trial Court whether there were any questions arising from the Court’s questions put to PW1 to which Mr Cheung replied in the negative. In respect of PW2, when the Trial Court indicated that his line of questioning might not help D10’s case, Mr Cheung said that he appreciated it and had no further questions.
F2.2 D37
278. Mr Kwan for D37 contends that the Trial Court improperly and excessively intervened during D37’s examination-in-chief in that D37 had to answer questions from the bench, akin to cross-examination, more often than questions from his counsel. Because of the nature and extent of the intervention, D37 did not receive a fair trial.
279. We have examined the relevant transcript and would make the following observations:
(1) It is incorrect to say that the Trial Court had pre-judged the case and attempted to “dismiss and mock D37’s evidence” as suggested by Mr Kwan. The questions were for clarification and case management purposes.
(2) D37 was not prevented from explaining himself. In fact, there were a number of instances when D37 said he would like to deal with the matter further and he was then encouraged by the Trial Court to do so. On other occasions, the Trial Court told D37 that they had difficulty understanding his evidence and asked him to explain. D37 then clarified and elaborated further. The phrases “there is nothing else that I would like to add” and “I have nothing else to add” were not infrequent in the course of D37’s testimony.
(3) Counsel was not prevented from properly discharging his duty. At least on one occasion, after the Trial Court’s intervention, trial counsel for D37 expressed his gratitude for having the matter clarified and stated that, “… I think that’s very well put.”
(4) While it is correct that the Trial Court once used the phrase “there is no logic” when D37 was testifying in court, that remark was not directed towards D37 and was not a dismissal of his evidence. It was a reply provided by one judge to another in respect of the latter’s expressed difficulty in following the logic of D37’s answers. Plainly, what a witness believes or does not believe is a matter for him and sometimes, logics have no place in it but the said belief remains his answer all the same. When examined in context, the impugned remark was merely to highlight the fact that D37 was testifying as to what his thinking, whether logical or not, was at the time. It was not a pre-judgment or dismissal of his evidence. Relevantly, immediately after the remark was made, the Trial Court sought D37’s confirmation as to whether he was saying that such was his belief, and not anything else, to which D37 answered in the affirmative.
280. In conclusion, we do not agree that D37 did not have a fair trial because of the Trial Court’s questioning.
F2.3 D47
281. Mr Pang contends that, “the Trial Court was interventionist from very early on in Examination-in-Chief”, preventing trial counsel from properly eliciting relevant evidence from D47, and also that, “the Trial Court continually disallowed questions on the ground of irrelevance.” To make good his complaint, Mr Pang sets out in his written submissions what he called “a particularly egregious example” in D47’s examination-in-chief which he said went to “the core question of whether D47 indeed intended to subvert the State Power”.[109]
282. Since Mr Pang criticises the Trial Court for continued interruptions (D47’s evidence lasted a total of 3½ days) but only gave an “egregious example” in his submissions, we have taken the caution to review the relevant transcript[110] to see if the complaint has any merits. Having done so, we do not agree that there were such “continued” interruptions as described by Mr Pang.
283. Nor do we agree that the Trial Court repeatedly erred in disallowing relevant questions. It should be remembered that the trial judge is best suited to assess the relevance of counsel’s questions for the judge is alive to the issues at trial. Sometimes, counsel might perhaps like to elicit, using Mr Pang’s term, “nuanced” explanations from a defendant, but there must be a limit as to what is relevant and essential and what are unnecessary details. One should not forget that the trial judge’s role is not entirely passive and questions could be put to clarify the evidence, to regulate a procedural or legal matter, or for case management purposes. Here, an examination of the transcript clearly shows that on relevant matters, the Court actually asked D47 to elaborate instead of preventing her or her counsel from putting forth the evidence. Further, the 13-page summary of D47’s evidence[111] is indicative of the wide range of issues covered when D47 testified: from her general personal background to how and why she got involved in political activities, and more particularly, from how and why she joined the Primary Election to what her thinking was at the various relevant stages.
284. On Mr Pang’s specific complaint that D47 was prevented from testifying on what her actions would be if the Government did respond to some or all of the “Five Demands”, the part of the exchanges relied on by Mr Pang in his submissions was just a small part of D47’s evidence. The topic of the “Five Demands” had in fact been dealt with extensively when D47 testified. The summary of her evidence annexed to the Reasons for Verdict covered these matters:
(1) she considered dual universal suffrage to be the most important out of the five;
(2) she considered that with universal suffrage, other problems could be sorted out eventually;
(3) if the Government would provide a timetable for universal suffrage, she was willing to accept it;
(4) she would make sure that the Government would accept the remaining demands;
(5) if the Government did not respond to the “Five Demands”, she would vote against the bills even if they had nothing to do with the demands;
(6) the reference to “mutual destruction” was just a gesture, not a threat;
(7) she submitted the nomination form for the Primary Election because she did not want to have any vote splitting situation amongst the pro-democracy candidates for the health services sector; and that,
(8) all along, she considered voting against the bills was lawful and did not violate the NSL.
285. Mr Pang relies on R v Naz [2018] 4 WLR 28 but it is of no assistance to him because the facts were very different. When allowing the appeal in Naz, the English Court of Appeal took into account, among other things, that the judge had formed a positive view of the prosecution evidence but a disbelief of the defence evidence at an early stage. The Court was also concerned that the introduction of an irrelevant matter might work to the disadvantage of the defendant. It was in these circumstances and looking at the matters cumulatively and in the round did the Court then conclude that serious unfairness had been caused. Nothing of that nature and degree happened here.
286. In light of all the above, although the words used by the Trial Court in the extract quoted by Mr Pang could be, and should be, put in a more refined manner, we do not agree that D47 had been prevented from giving relevant evidence and we do not see any unfairness resulted.
F3. Conclusion
287. For the foregoing reasons, this ground must fail for each of D10, D37 and D47.
G. Res gestae (D5)
288. At trial, counsel for D5 sought to put before the Trial Court two statements made to others by D5 regarding his allegedly neutral stance on the vetoing of budgets, namely, the email exchange between D5 and one Anthony Yau dated 9 April 2020 and the Interview.[112] It was suggested that the statements constituted res gestae evidence. The Trial Court, however, took the view that they were mixed statements and had the statements admitted in that capacity. Mr Kwan contends that the Court erred in so ruling.
289. In his written submissions, Mr Kwan stated that, the “spontaneous response” in April and June 2020 “was contemporaneous with the transaction in question”, and therefore, “it is clear that D5 was non-aligned with the publicised plan to veto the budget indiscriminately …” and also that “… by 17 June 2020 (2 weeks before the charge period) his state of mind was that vetoing the budgets was not a necessary condition for participating in the [Primary Election].” Since D5’s mind as expressed in both cases, so the argument goes, “was dominated by the event and any possibility of any concoction or distortion to his advantage can be disregarded”, the statements could be “safely regarded as a true reflection of what was unrolling in his mind” and should qualify as res gestae.
290. The law on res gestae is well-settled. In R v Andrews 1 A.C. [1987] 281. Lord Ackner had this to say:
“My Lords, may I therefore summarise the position which confronts the trial judge when faced in a criminal case with an application under the res gestae doctrine to admit evidence of statements, with a view to establishing the truth of some fact thus narrated, such evidence being truly categorised as ‘hearsay evidence?’
1. The primary question which the judge must ask himself is—can the possibility of concoction or distortion be disregarded?
2. To answer that question the judge must first consider the circumstances in which the particular statement was made, in order to satisfy himself that the event was so unusual or startling or dramatic as to dominate the thoughts of the victim, so that his utterance was an instinctive reaction to that event, thus giving no real opportunity for reasoned reflection. …
3. In order for the statement to be sufficiently ‘spontaneous’ it must be so closely associated with the event which has excited the statement, that it can be fairly stated that the mind of the declarant was still dominated by the event. Thus the judge must be satisfied that the event, which provided the trigger mechanism for the statement, was still operative. …
4. Quite apart from the time factor, there may be special features in the case, which relate to the possibility of concoction or distortion. … The judge must be satisfied that the circumstances were such that having regard to the special feature of malice, there was no possibility of any concoction or distortion to the advantage of the maker or the disadvantage of the accused.
5. As to the possibility of error in the facts narrated in the statement, if only the ordinary fallibility of human recollection is relied upon, this goes to the weight to be attached to and not to the admissibility of the statement and is therefore a matter for the jury. …”[113] (emphasis added)
The reference to the event being “unusual or startling or dramatic” in the above observation made by Lord Ackner was, in our view, important as that is the “operative trigger” for making the statement.
291. In the present case, while Mr Kwan argues that D5’s mind was then “dominated by the event”, he did not identify what that particular event was. Presumably, Mr Kwan has in mind the Primary Election as the triggering event. However, if that was the case, then it should be noted that the Primary Election from its inception to the election days lasted about half a year. In view of such a long period of time, whether the Primary Election could properly be regarded as “… the event so unusual or startling or dramatic as to dominate the thoughts of the [maker of the statement], so that his utterance was an instinctive reaction to that event” would seem to be questionable.
292. Further, we note that Mr Kwan had, in his written submissions, referred to D5’s different states of mind at various stages during the Primary Election:
“… The evidence shows that after 11 May 2020, D5 did not support any notion of mutual destruction. Further, by mid-June 2020, his previous assumption that agreeing to veto the budgets was a prerequisite for the [Primary Election] had changed …”
In other words, even on Mr Kwan’s submissions, D5 had harboured different thoughts at different times during the “operative” period of the Primary Election. If so, one is entitled to ask why only some out of the many statements made by D5 at different times should be regarded as res gestae evidence and not the others. There is also the question as to how one should assess spontaneity and proximity to the “event” if it is an event having a duration of over half a year. These are perturbing questions to say the least. In any event, it seems to us that to argue res gestae in these circumstances would be stretching the principle beyond permissible limits.
293. As to the Trial Court’s classification of the statements as “mixed statements”, with respect, we do not agree.
294. In Phipson on Evidence, 20th Edition at §36-01, the learned edition have this to say about the meaning of a confession:
“… Stephen defined a confession as ‘an admission made by a person charged with a crime stating or suggesting the inference that he committed that crime.’”[114]
In R v Sharp (1988) 86 Cr App R 274, at 278, the landmark case dealing with “mixed statements”, the court stated that:
“…Evidence contained in a confession is however an exception to the hearsay rule and is admissible ... This exception became extended to include not only a full confession to the crime but also a partial confession in which the accused admitted some matter that required to be established if the crime alleged was to be proved against him …”
295. Thus understood, when we speak in terms of “mixed statements” in criminal litigation, the reference should be in the context in which a person makes both inculpatory and exculpatory replies when confronted in relation to a crime. In the present case, as the offence was said to have taken place between 1 July 2020 and 7 January 2021, whatever was said by D5 in April and June 2020 prior to the commission of the offence could hardly be classified as “mixed statements” in its true sense.
296. Nevertheless, despite the classification of the statements as mixed statements, there were no references in the Reasons for Verdict[115] as to the Trial Court placing reliance on any incriminating parts thereof. According to the relevant transcript concerning the giving of the ruling, the Trial Court pointed out that the Interview might contain incriminating evidence as it showed that D5 was minded to facilitate the Project by exerting pressure on the potential candidates. However, even assuming that reliance had been placed on such, we note that apart from the statements, there was other evidence, as found by the Trial Court, which could prove the same. In the circumstances, we do not consider that this mis-classification had worked to the disadvantage of D5 or had caused any unfairness.
H. Disposal of the conviction appeals and leave applications
297. For the reasons given above, we do not consider that any of the grounds of appeal against conviction is made out. Accordingly, we refuse to grant leave, and in the case of D10, leave out of time, and we dismiss the applicants’ appeals against conviction.
Part III – CACC 253/2024 (Sentence) & CACC 263/2024
I. Sentences imposed by the Trial Court
298. All the applicants except D27, D37, D38 and D41 had a clear criminal record. As to their role, all except D5 ran as candidate in the Primary Election whereas D5 launched the Campaign to support the Project in March 2020. Their other relevant personal circumstances at the time of sentence and mitigations advanced on their behalf were set out in the Reasons for Sentence, which we will not repeat here.
299. In approaching sentence, the Trial Court first held that the penalty bands in the NSL did not apply to conspiracy but was of reference value only.[116] It went on to remind itself that, in discharging its duty to prevent, suppress and punish acts which endangered national security, it should apply local sentencing laws and principles in tandem with the NSL provisions, citing HKSAR v Lui Sai Yu (2023) 26 HKCFAR 332.[117] It further referred to HKSAR v Ma Chun Man [2022] 5 HKLRD 246 for the factors that might place a national security case under the serious category.[118] As to pre-NSL conduct, it accepted that what the applicants had agreed to do was not criminal until the enactment of the NSL. However, they remained willing parties to and continued to participate in the Scheme after it had been rendered criminal by the NSL. As such, it was entitled to look into those pre-NSL conduct to assess the seriousness and extensiveness of the conspiracy as well as the respective roles of the applicants, although they were not sentenced for any such conduct.[119]
300. The Trial Court rejected the applicants’ argument that the acts specified in NSL 22(3) are less serious than those under NSL 22(1) or NSL 22(2). It emphasized the importance of the role of those applicants as candidates of the Primary Election. They were essential characters of the Scheme, without whom the Scheme simply could not get off the ground. They lent support to and actively participated in the Scheme. The Trial Court accordingly categorized them as “active participants” for the purpose of NSL 22(3).[120] As to D5, for the reasons that they gave, the Trial Court found that he was also an “active participant” for the purpose of NSL 22(3).[121]
301. The Trial Court further rejected the argument advanced by some of the applicants that the state of affairs as described in NSL 22(3) would never have happened; and that even if there were no disqualification or postponement of the LegCo election, the participants of the Scheme would never have secured enough seats of make it work, as valid mitigation.[122] On the other hand, it accepted the mitigation advanced by those applicants that they were misled by D1 as to the lawfulness of the Scheme.
302. In arriving at the quantum, the Trial Court adopted a basic starting point of 7 years for all applicants. For D5, because of his overall role in the Scheme, it increased the starting point by 6 months. For D37, the Trial Court regarded the fact that he was one of the initiators of the IWR Declaration as an aggravating factor and enhanced the starting point by 1 year.[123] It then gave discount to mistake as to law and past services as mitigation where appropriate and arrived at the following sentences:
|
Ds |
Discount |
Result |
| |
Guilty plea |
Mistake as to law |
Past service |
|
|
D5 |
|
3 months |
|
7 years 3 months |
|
D8 |
|
3 months |
3 months |
6 years 6 months |
|
D10 |
|
3 months |
3 months |
6 years 6 months |
|
D14 |
|
3 months |
2 months |
6 years 7 months |
|
D17 |
|
3 months |
3 months |
6 years 6 months |
|
D27 |
33.3% |
3 months |
|
4 years 5 months
(wholly consecutive to the existing term of 37 months for riot, giving a total of 7 years 6 months) |
|
D36 |
|
3 months |
3 months |
6 years 6 months |
|
D37 |
|
3 months |
|
7 years 9 months
(wholly consecutive to the existing term of 61 months 15 days for riot, giving a total of 12 years 10 months 15 days) |
|
D38 |
|
3 months |
|
6 years 9 months |
|
D41 |
|
3 months |
|
6 years 9 months |
|
D47 |
|
3 months |
|
6 years 9 months |
J. Grounds of appeal
303. We will categorize the grounds of appeal raised by the applicants below to facilitate our consideration.
304. The first group of grounds concern the starting points adopted by the Trial Court, complaining that:
(1) the Trial Court erred in categorizing them as “active participants” – D5, D8 ad D41 (Ground 1(a));
(2) a single starting point of 7 years lacks calibration, which is incapable of reflecting the minor role and involvement of some of the applicants – D10, D14, D17, D36, D38, D41 and D47 (Ground 1(b));
(3) the Trial Court failed to take into account the fact that the Scheme was non-violent (HKSAR v Ma Chun Man [2022] 5 HKLRD 246) and was put to an end at a nascent stage (R v Dihren Barot [2008] 1 Cr App R (S) 31; HKSAR v Kwok Man-hei [2024] HKCFI 280) when adopting a starting point of 7 years for all the applicants running as candidate in the Primary Election – D10 (Ground 1(c)); and
(4) the Trial Court erred in enhancing the starting point – D5 and D37 (Ground 1(d)).
305. The second group concerns mitigation, complaining that the Trial Court erred in failing to:
(1) regard impossibility of the Scheme as valid mitigation – D17, D38 and D47 (Ground 2(a));
(2) give sufficient discount on mistake/ignorance of law – D8, D14, D36 and D47 (Ground 2(b));
(3) give sufficient discount on past community services – D14, D36, D38 and D41 (Ground 2(c)).
306. Lastly, D27 and D37 complained that the Trial Court erred in failing to give sufficient regard to totality – D27 and D37 (Ground 3).
K. General approach to sentencing
307. Before we discuss the grounds of appeal, we will first set out the general approach to the sentencing of conspiracy to commit a NSL 22(3) offence.
308. In HKSAR v Wong Kin Chung [2025] HKCA 813, this Court held that on a proper construction, the penalty bands of NSL 21 apply to the sentencing of conspiracy to commit a NSL 20 offence.[124] The same construction must equally apply to NSL 22. It follows that contrary to the view expressed by the Trial Court, which must be regarded as erroneous, the penalty bands in NSL 22 apply to the sentencing of the present offence.
309. In Lui Sai Yu, the Court of Final Appeal at Part G described the general sentencing process for conspiracy to commit a NSL 20 offence. The same process applies here.
310. Under that process, insofar as the conditions in NSL 33 under which a lighter penalty may be imposed or the penalty may be reduced are not engaged, the court will firstly determine the applicable penalty band, having regard to the role and involvement of the defendant and the seriousness of the offence. In this regard, the factors listed by this Court in Ma Chun Man at [75] are helpful, recognizing that the list is not intended to be exhaustive or mechanically applied. At this stage, the court will determine which category of the offenders in NSL 22 the defendant belongs to: (1) principal offender or a person who commits an offence of a grave nature; (2) active participants; or (3) other participants. Next, the court proceeds to apply familiar sentencing laws and principles derived from local jurisprudence. Exercising its discretion, the court determines a starting point within the appropriate band, then takes account of aggravating and mitigation factors in increasing or giving discount to the starting point, and arrives at the final sentence. The final sentence must be located within the applicable penalty band.
311. With the above in mind, we now turn to examine each of the grounds of appeal.
L. Consideration of the grounds of appeal
L1. Grounds 1(a) – (d)
312. In relation to Grounds 1(a) and (b), the applicants argue that a distinction should be drawn between the localists, and the traditional democrats; the members and leaders of political parties and those who were not or not so positioned; the candidates who had attended the CMs, election fora and press conferences and those who had not; or not on so many occasions; the candidates who had openly advocated for the vetoing of budgets and those who were more reticent; and so forth. In support, they seek to rely on HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 for the proposition that roles and involvement affect culpability hence sentence and must therefore be carefully examined in a case of conspiracy.
313. We disagree because:
(1) The success of the Scheme was evidently premised entirely on the prospect of a group of people being elected into the LegCo. And that group of people came from the candidates who ran for the Primary Election with the necessary mens rea. As described by the Trial Court, they were “essential characters” to the Scheme. Categorizing them as “active participants” cannot be faulted.
(2) As it is the fact that an applicant ran as a candidate in the Primary Election that underlies his culpability, it makes no difference whether he was less vocal or forthcoming than others, or that he was low in the hierarchy of his political party or group and could only follow a fixed agenda. There could be many reasons for such behavior, differently motivated. But they do not detract from the central feature underpinning his culpability, that is, running as candidate in the Primary Election.
(3) The reliance on Herry Jane Yusuph, which concerns sentencing in drug trafficking, is misplaced. Drug trafficking involves various forms and circumstances. The general approach to sentencing is primarily based on quantity – which often resulted in obfuscating the different types of traffickers, such as couriers, keepers of the premises where drugs were found or sold, managers and financial controllers of the operation. The present case is entirely different when running as a candidate is the core subject of condemnation, without which there could be no implementation of the Scheme. Any attempt to go further in differentiating the applicants’ role or involvement would be like splitting hair between drug traffickers of the same role over some minor differences in their respective modes of operation. Viewed in the round, those details are of little significance.
314. As to Ground 1(c), contrary to D10’s argument, the Scheme had plainly gone beyond the embryonic stage. Further, the ultimate goal of the Scheme was to cause the constitutional order in the HKSAR havoc. Had it involved force or threat of force, or had gone any further than it already did, it would have justified a starting point or more than 7 years.
315. In conclusion, we uphold the general starting point of 7 years adopted by the Trial Court.
316. Turning to Ground 1(d), the Trial Court had this to say when it enhanced the starting point for D5 by 6 months:
“ 74. Concerning D5’s role in the conspiracy, he was neither an organizer of the Primary Election nor a candidate. At the time D5 launched the ‘Say No to Primary Dodgers’ Campaign, he was not yet a party to the Scheme. Based on the evidence before us, we find that D5 became a party to the Scheme through his communication and contacts with D1, even though his identity was not known to the other parties. It is also our finding that after the enactment of the NSL, D5 continued to embrace the idea of ‘mutual destruction’, this is to say, to cause a serious interference in, disruption or undermining of the performance of the duties and functions of the Government, should the Government refuse to accede to the Five Demands. Moreover, he willingly and intentionally continued to facilitate the Scheme by putting pressure on others so as to see that only those who joined and won in the Primary Election would take part in the coming LegCo election. This was exemplified by the fact that he placed a full-page advertisement in Apple Daily on 3 July 2020 urging candidates who lost in the Primary Election not to participate in the LegCo election and asking people not to vote for anyone who had not participated in the Primary Election.
75. Bearing in mind D5’s role in the Scheme, we are of the view that he was an ‘active participant’. In our assessment, the appropriate starting point for D5 is 7 years and 6 months (90 months) imprisonment. In so doing, we have already taken into account, among other things, that D5 was not after any personal gain and that the Scheme did not involve any use of violence.”
317. D5 submits the candidates were the executors of the conspiracy, that is, those who were responsible for the ultimate acts of causing havoc to the constitutional order in the HKSAR. As such, they were more culpable than he in terms of role and involvement, which is an important factor in attributing culpability between co-conspirators: R v Cooke [2017] EWCA Crim 1272.
318. We have no difficulty with the principle in Cooke but would reject D5’s complaint.
319. What the Trial Court said in the passage quoted above concerning D5’s action in support of D1 and the Scheme is highly abridged. For the full content, one must read [601] and [602] of the Reasons for Verdict. From that account, it can be seen that (a) D5 was not alone, but had a team which he was content to commit to the promotion of the Primary Election; (b) D5 used his own campaign Facebook for urging others to visit D1’s Facebook and to leave messages of encouragement; (c) D5 drafted an open letter for D1 to warn all the candidates that his campaign would appeal to the voters not to vote for anyone who failed to follow their mutual agreement; (d) D5 helped to spread D1’s crowdfunding hyperlink by sharing it on all his campaign platforms; (e) D5 procured iPads for use in the Primary Election and recruited volunteers to man the polling stations; (f) D5 used his campaign Facebook to call on all the candidates to “behave themselves and respect the rules of the Primary Election and the choice of the voters”; and (g) upon the dismissal of D1 from his employment, D5 came to his support by posting in his campaign Facebook that the ‘Say No to Primary Dodgers’ team strongly condemned the HKU Council. There are other minor examples.
320. It is true that if elected into the LegCo, the candidates would be the ones who would bring the final phase of the Scheme to fruition. But the task of getting them elected was herculean. Without the support and resources that enabled the Primary Election to materialise, the mere willingness of the candidates to run would also mean nothing. It is therefore wrong to trivialise D5’s contribution. On the contrary, he played a multiple role of public relations representative, fundraiser, human and logistical support officer, even discipline master. He might not be the only one to be so deeply involved but on the evidence, that was the extent of things he did for the purpose of making the Primary Election a success. In all the circumstances, we do not think an enhancement of 6 months is wrong in principle.
321. As seen, the Trial Court enhanced the starting point by 12 months of D37 because he was one of the initiators of the IWR Declaration, demonstrating that he was putting every effort in binding the participants to ensure its success. D37 criticizes the Trial Court for doing so because the Declaration was drafted, published and signed before the coming into effect of the NSL. The enhancement was therefore tantamount to punishing him for a pre-NSL act. We disagree because:
(1) The Trial Court was sensitive to the strict demarcation between what was within and without the charge period. Based on what it specifically said about the IWR Declaration, the Trial Court was treating it as a mere indicator of D37’s overall involvement in the conspiracy. It was entitled to do so.
(2) The Declaration must have given extra momentum to the Primary Election. Despite the promulgation of the NSL, such effect did not cease because of the lack of retraction on the part of the initiators. It was plainly an aggravating factor.
(3) The enhancement of 12 months is within the reasonable range that the Trial Court may adopt. It is neither wrong in principle nor manifestly excessive.
322. In conclusion, we hold that the basic starting point of 7 years for all applicants and the enhancements for D5 and D37 are all proper. Grounds 1(a) to (d) fail.
L2. Grounds 2(a) – (c)
323. In relation to Ground 2(a), D8, D17, D18 and D47 submit that even if they or their replacements survived disqualification, and the participants of the Scheme all came out as winners in the LegCo election, they would still be in the minority (23 seats out of 70) and would never be able to defeat the functional constituencies in a vote on the budget. They urge upon us that, had it been willing to look, that was the reality the Trial Court would not have missed, and it would then be obliged to give a reduction of sentence on account of impossibility: R v Wu Man Hon [1993] 2 HKC 267; Dihren Barot. We disagree.
324. Leaving aside the case law, which is fact-sensitive,[125] what we find important to remember in approaching this topic is that course-changing events can be precarious. They take place because something or other happens, which then gathers momentum. This phenomenon is not uncommon. It is therefore not up to anyone to write the Scheme off as an innate failure. The voting system in the LegCo may not be to their immediate advantage but given the volatility of the situation, and the state of agitation that was becoming widespread, there was simply no guarantee that the balance would not be swung towards the applicants and their like-minded associates, if elected. In that event, the only impossible thing would be for the Chief Executive to concede to the Five Demands which, the Trial Court found, was the exact impasse that the Scheme was intended to create. As the Trial Court pointed out, there were difficulties facing the applicants but there were also counter efforts. At the material time, it was just an unfolding story.
325. We next turn to Ground 2(b).
326. The Trial Court accepted mistake as to law as a mitigating factor for every defendant who relied on it except D1 and D35. Before us, the only complaint by D8, D14, D36 and D47 is that it did not give sufficient weight to this factor and the discount was too small. With respect to the Trial Court, we do not consider mistake as to law as a valid mitigating factor on the facts of the present case.
327. As pointed out, the step to acquire a majority in the LegCo was inseparable from the pursuit of the Five Demands, which the applicants knew was unacceptable to the Government. The Scheme was to use this deadlock, and the vetoing of budgets to grind the constitutional order in the HKSAR to the ground with all its aftermaths. That is the Trial Court’s core findings underpinning every one of the applicants’ convictions. Thus analyzed, giving a discount for mistake of law about the Scheme would be no different from giving credit to the applicants for activating what they erroneously believed to be a self-destructing mechanism unwittingly built into the system. Exploiting the system in such a way intending to bring about potentially devastating consequences for the HKSAR, even under the mistaken belief that it was lawful, deserves little by way of mitigation, if at all. It makes no difference whether any of the applicants was misled by D1.
328. The applicants rely on R v Sachs [1953] (1) SA 392 and R v Pitchford and Cook (1982) 66 CCC (2d) 568 in support. However, their facts are totally different.[126] They do not even come close to the extreme situation in the present case where a group of political activists sought to cripple the constitutional order in the HKSAR.
329. The discount given by the Trial Court on mistake of law can only be regarded as gratuitous. The applicants cannot validly complain that the discount was too small.
330. Turning to Ground 2(c), we first consider the complaints of D14, D36 and D41:
(1) In short, D14’s complaint is that having served as a District Councillor since 2015, in which capacity he had dedicated much time and energy to advancing the cause of the underprivileged, he was given the same two-month discount as those who were elected to the District Council in November 2019.[127]
(2) Using the same defendants as a benchmark, D36 is also said to be aggrieved by the three-month reduction that was given on account of his having served as a Member of the LegCo for two terms, or eight years. His contribution in this regard is “acknowledged even by the pro-establishment camp”, it is stated.
(3) D41’s complaint is that the Trial Court should refuse to grant him any discount at all. His submission is that it is wrong in principle to withhold any such discount on the ground that it had been given before, as the Trial Court did:[128]
“306. Mitigation letters from social workers, trade union officers and friends had been produced to demonstrate his dedication in working for the underprivileged and grassroots. Counsel for D41 asked this Court to take into account of D41’s positive good character and contribution to the community. Given his past criminal records, we did not think we were in a position to describe D41 as having a positive good character. Nor could we grant him further discount for past contribution to the community. No doubt, such had been given in the past.”
331. We are unable to accept these complaints.
332. A discount for past community services is for acknowledging a proven track record of service to the community, which may help place the immediate culpability of a defendant in a broader context: see generally Cross & Cheung, Sentencing in Hong Kong, 11th Edition, §30-326, at p.521. The weight to be attached and hence the discount to be given must be assessed against his overall culpability. Here, given the serious criminality of the offence, the discount of 2 to 3 month is, in our view, the upper limit for any defendant who had served the community in the real sense. Any further deduction can only be justified if the community service of the defendant is exemplary, which is not the case here.
333. In respect of D41, public service is a frequent and important manifestation of positive good character: see generally Cross & Cheung, Sentencing in Hong Kong, §30-293, at p.512. However, good character can also be lost. Considered as a whole, the essence of what the Trial Court said at [306] of the Reasons for Sentence is that, whatever credit D41 might have earned for his community service is now cancelled out by his recidivism. That is a view that the Trial Court could legitimate take.
334. D38’s case is a little more complicated. The Trial Court said:
“287. D38 is now aged 47, a former LegCo Councillor for New Territories East. He has four criminal convictions, three relating to disclosing identity of person under ICAC investigation and one assaulting, interfering with officer of the LegCo while in the execution of duty.
……
290. For the role D38 participated in the Scheme, we were of the view that 7 years (84 months) should be adopted as the notional starting point. Three months would be given for his ignorance of the law. No doubt, his past contribution to public work had been taken into account previously and as D38 was convicted after trial, no further discount would be given.”
335. The four previous convictions that were allegedly in existence at the time are those set out in the table below. We say “allegedly” because three of those convictions had in fact been overturned by the Court of First Instance when D38 was sentenced. They were not restored until upon further appeal to the Court of Final Appeal:
|
Date |
Event |
|
26.01.2022 |
Sentenced on 3 charges of ‘disclosing the identity of a person under ICAC investigation’ (ESCC 2789/2020) |
|
13.12.2022 |
Sentenced on 1 charge of ‘assaulting or interfering with an officer of the LegCo’ (ESCC2993/2018) |
|
08.02.2024 |
Conviction and sentence in ESCC 2789/2020 quashed in the CFI ([2024] HKCFI 422) |
|
30.05.2024 |
Reasons for Verdict in the present case |
|
19.11.2024 |
Reasons for Sentence in the present case |
|
01.04.2025 |
The CFA restored the conviction and sentence in ESCC 2789/2020 ([2025] HKCFA 7) |
336. D38’s complaint is that (a) the Trial Court was wrong to refuse to take into account his good background and past contribution to public service and (b) it made a factual mistake as to the number of previous convictions that D38 had at the time of sentence. In respect of (a), it is stressed that (i) no material was ever placed before the Trial Court to show that the past contribution of D38 had been made a subject of discount in any previous case and (ii) there is no principle in law that good background and past contribution can only be treated as a mitigating factor once. In respect of (b), it is suggested that the mistake concerned might have reinforced the Trial Court’s unsupported assumption under (a).
337. In terms of merits, D38’s complaint is almost identical to that of D41. What we have said at [332] above equally applies to D38. In short, the effect if not the sentiment of what the Trial Court said was to deny D38 of any credit that he might have accrued as a legislator, on account of his previous convictions. These convictions may not be as large-number or long time-spanning as those of D41, but there can be no debate that it was strictly within the purview of Trial Court to view them as sufficiently serious to block any discount on account of the positive good character or past public service. Any factual mistake that the Trial Court might have made at the time was subsequently proved to be of no consequence. So, there was no unfairness either.
338. In conclusion, none of Grounds 2(a) to (c) succeeds.
L3. Ground 3
339. Insofar as it is relevant to the question under consideration, the following is what the Trial Court said of the case of D27 before imposing a wholly consecutive sentence:[129]
“ 224. The riot case to which D27 pleaded guilty pre-dated the present case. The two cases had no direct relationship to each other and related to two distinct and separate incidents. We had carefully considered the issue of totality and failed to see why a concurrent sentence should be imposed.”
Likewise, in respect of D37:[130]
“ 286. In conclusion, for the offence D37 stands convicted, he is sentenced to …. As the riot case predated the present case and the two had no direct relationship to each other, they were two separate and distinct incidents. As such, the … imposed would be ordered to serve consecutively to the riot case. In so doing, we had considered the issue of totality.”
340. D37 first takes a procedural complaint. He contends that the Trial Court should have approached the matter as if the two cases were heard together, the riot and the conspiracy, and to allow for an overall starting point to be identified, in which case the excessiveness of a wholly consecutive sentence would have been obvious. In terms of substance, the position common to D27 and D37 is that behind both those cases were the same political beliefs held over the same period of social disturbance, thus pointing to an “overlapping of culpability” hence partly concurrent sentence. As it is, the wholly consecutive sentence is disproportionate, unfair and crushing. We disagree.
341. The Trial Court is a very experienced court. An absence of enunciation of its thought process does not necessarily mean there was neglect and omission. When it categorically stated that it had taken the totality principle into account, we do not doubt that it had taken all the necessary steps to ensure its correct application. Substantively, we accept the respondent’s submission; instead of “overlapping culpability”, the case of conspiracy and the case of riot should be understood as one “adding to the culpability” of the other, as per Stock VP (as he then was) in HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690.[131] While it is submitted that the two offences were similarly motivated, and were committed within the same period, D27 and D37 did escalate from one serious offence to another, with the gravity of the conspiracy charge being at a completely new and much higher level. Looking at the matter in the round, we consider it is justified for the Trial Court to impose a wholly consecutive sentence.
342. As an aside, it is submitted on D37’s behalf that before passing sentence on any NSL offender, it is incumbent upon the court to consider the effect of section 6(3A) of the Post-Release Supervision of Prisoners Ordinance[132] – not at the time of determining the length of sentence, but at time of considering totality. We reject this contention. As this Court explained in Ma Chun Man v Commissioner of Correctional Services [2025] HKCA 585, the denial of early release is not automatic for NSL prisoners. The discretion of the Commissioner to refer a case for consideration or not is fact-sensitive, recommendation-based and annually reviewable. It is therefore not up to the sentencing court to make any prediction – at any stage. As a matter of fact, it is a well-established principle in law that judges do not take into account any remission in prison when passing sentence: R v Burnley MC ex parte Halstead (1990) 12 Cr App R(S).
343. In conclusion, Ground 3 fails.
M. Disposal
344. For the above reasons, we refuse all the applicants’ applications for leave to appeal against sentence and dismiss their appeals.
Part IV – CACC 268/2024 (Case stated)
N. Acquittal
N1. D16’s case below
345. D16 was of clear record. He elected to give evidence the thrust of which was that he did not understand the Project to have the aim of bundling elected members of the LegCo in voting against all government budgets. Neither did he have the intention to subvert the State power.[133]
346. A barrister and before that, a research student of constitutional philosophy in the London School of Economics, D16 was first elected to the Sham Shui Po District Council as a councillor in November 2019. By his own admission, he was greatly sympathetic to the Anti-Extradition Bill movement of that year. By Chinese New Year 2020, the idea that he might want to run for a seat in the LegCo slowly took root.[134]
347. On 24 March 2020, D16 and his personal assistant attended the first CM of Kowloon West without being invited. In the meeting, he heard nothing about bundling the Primary Election with what elected candidates should do after it. He could not remember if “Five Demands” was mentioned, or if the document “35-plus project” was circulated. What D1 did say was if the pan-democrats had a majority in the LegCo, they would have a lot of constitutional powers at their disposal – including that of vetoing budgets. On his part, D16 raised the point that by depriving the electorate of a full range of candidates, the Primary Election was undemocratic. But nobody was interested. In all, the meeting was very much like a briefing. No consensus was reached and D16 was undecided as to what to think of it. He went to find out about the arrangement and that was what he had achieved. He left the meeting without leaving his contact but the organisers should know who he was and his assistants. That concluded D16’s first and last coordination meeting. He did not attend and was not aware that there were any others.[135]
348. The idea of him running for the LegCo became firmer in April 2020. This was prompted by D16’s desire to change the law on riot. He had not learned more about the Primary Election in the interim. In 2019, he did read D1’s book on Occupy Central and later, his academic articles in English. The impression he had was that D1 wanted to protect the rule of law by securing an increased majority of pan-democrats in the LegCo, and by strategic voting. To that extent, he was attracted to D1’s ideas. He had certainly not read D1’s “10 Steps to Mutual Destruction”. Nor had he heard of the term “constitutional weapon of mass destruction”. In general, he was not impressed by and would not read anything that D1 wrote in Chinese. Despite his concern about the Primary Election being undemocratic, D16 eventually went along with it – lest people may think he was un-devoted. That was the advice given to him by two other district councillors.[136]
349. D16 did not sign on the IWR Declaration, a document which he thought was just stating the obvious. In terms of content, it was also much mellower than the stand that its initiators in the localist camp normally took. D16’s guess was that they wanted to reverse to a calmer, more rational image for a wider public appeal. As to his name appearing on the IWR Declaration in other people’s Facebook, D16 was not even aware of it until a few days before the election forum. He had asked his team about it but none of them could explain how it happened. He chose not to clarify his position because that would expose his disagreement with the Five Demands – the Five Demands being one of the subject matters of the declaration. To be precise, D16 did not disagree with all five demands, only those that would lead to the release of everyone arrested for riots while still holding the police to account. He was also of the view that dual universal suffrage took time to develop and was indifferent as to who occupied the post of Chief Executive. Such was his position, D16 had never advocated for the Five Demands in his election campaign.[137]
350. D16 admitted to have read the Nomination Form carefully before authorising its signature and submission. He asked what “consensus” paragraph 2 was referring to and was told by his assistant that it involved four essentially logistical items, the target number of seats being one example. Other than that, D16 was not aware of anything binding as to future conduct in the form. To his understanding, the Project was all about strategic voting with the sole purpose of securing a majority for the pan-democrats in the LegCo. The Five Demands might be what many candidates were after but it was not one of the objectives of the Project. D16 denied knowing that the reference to “consensus” meant vetoing all government budgets to press for the Five Demands.[138]
351. Consistently, there was no mention of any vetoing of bills and budgets in his election pamphlet in Chinese. In the English text, the phrase “authoritarian pressure” was directed at the Government and Central Authority for allegedly not upholding the “one country, two systems” principle, whereas “communist stooge” and “the darkest hour” were but some ex-opponent in a previous District Council election and pure rhetoric.[139]
352. As a veteran debater, D16 had no need to prepare for the election forum. He did however spend time on reading the election pamphlets of other candidates for Kowloon West and was thus aware of their political stance in general terms. But that was not to say he could remember their exact content which, the prosecution was quick to point out, made reference to the vetoing of budgets. As regards the debate notes which the police found in his District Council Office, one of which was on who did or did not endorse the IWR Declaration, D16 was not the person who had prepared them. He was not even aware of their existence. He had a team of one campaign manager, ten interns and a few core volunteers, and he would talk to them about his ideas. In any event, much of what he said at the election forum was not in these notes. They were not the same.[140]
353. D16 highlighted D14’s signing and endorsement of the IWR Declaration at the forum. He was pleased to see D14 presenting a younger and bolder image of the ADPL, and he thought D14 could do with another opportunity to promote himself. That was why he asked D14 about the IWR Declaration. If in turn he was questioned about the Declaration by someone in the audience, a scenario which he had thought of happening before going to the forum, he would have no alternative but to reveal his true position, however much he would like to avoid committing “an election suicide”.[141]
354. D16 was not a user of WhatsApp. He was a private person and did not like using that kind of software. He did not even have a television or computer at home. He had his books, his music and two cats and that was how he preferred to live. For everyday communication, he would use his iPhone and iMessages. For communication with the organisers of the Primary Election, he relied on Mr Lee, his personal assistant. Admittedly a core volunteer, a certain Victoria Wong, was in the WhatsApp group for the Kowloon West constituency but he was neither aware of the setting up of this group nor was he the person who asked Ms Wong to join as a member. He was not aware of D1’s press conference of 26 March 2020. If he knew anything about the one on 9 June 2020, which he was not sure, it was from reading the newspaper.[142]
355. Having studied the text of the NSL, D16 was of the view that his position and everything that was in his electioneering materials, were all NSL-safe. The charge of conspiracy did not cross his mind because to him, he was merely participating in a project of strategic voting for the sole purpose of securing a majority in the LegCo. That was why he had not adjusted his campaign in any way upon the coming into force of the NSL. Although he was not aware of the press conference of the organizers of the Project on 9 July 2020, he did have the occasion to read some of the news coverages on D1’s response to the legality question of the Primary Election.[143] D16 did not end his campaign until losing in the Primary Election.
N2. The Trial Court’s reasoning
356. The Trial Court’s evaluation of D16’s evidence can be roughly divided into parts. Beginning with D16’s personality, which is not unimportant to the extent that it might affect his interaction with people and things, this is what the Trial Court observed:[144]
“343. D16 impressed us as a man with some self-conceitedness shown. He showcased, on occasions, his knowledge in the course of his evidence. For the draft debate notes[145] seized from D16’s District Councillor Office upon his arrest, we considered the explanations given by D16, who chose to give evidence.”
357. Moving then to the question of the debate notes, they said:[146]
“344. We note that it is a fact that D16 did not follow the contents of the draft debate notes in the election forum of Kowloon West. On the evidence before us, we are not sure that D16 agreed with the contents of the draft debate notes.”
358. On the IWR Declaration, it said:[147]
“345. Although D16’s name appeared as one of the signatories of the IWR declaration, we are not sure if he signed the IWR declaration or that he authorised someone to sign it on his behalf. It is a fact that D16 did not post the IWR declaration on his Facebook page and he did not make use of the IWR declaration in his electioneering work. In fact, the ideas of vetoing the budgets and the Five Demands did not feature in D16’s election campaign. In our judgment, there is a reasonable doubt whether D16 subscribed to the idea of vetoing the budgets indiscriminately, which was the subject matter of Clause 1 of the IWR declaration.
346. The prosecution submitted that D16 gave no believable explanation as to why his name appeared on the IWR declaration. In our judgment, if D16 did not know who put his name on the IWR declaration without his consent, it would follow that he could not explain why his name appear on the IWR declaration.
347. We are sure that D16’s name was affixed by one or more of his staff members who knew that D16 intended to participate in the Primary Election. If D16 was told by his staff members they had no clue as to who put his name on the IWR declaration, that was all D16 could say in his evidence.
348. We accept that D16 found himself in a ‘catch twenty two’ situation when he learnt that his name appeared on the IWR declaration; if he asked to take his name down or if he was to publish a clarification on his social media, it would amount to a ‘political suicide’, given the then political atmosphere.
349. It is a fact that D16 took the initiative to ask D14 in the election forum why D14 was the first to sign the IWR declaration. We accept D16’s evidence that he asked the question because he wanted D14 to shine in the election forum. In any event, the true stance of D16 in relation to the IWR declaration was not exposed to the public as a result of the question he asked of D14.
350. Having watched the election forum of Kowloon West played in Court, we accept the evidence of D16 that he had a slip of tongue for the question he asked of D14. He meant to say ‘你哋’ (you) instead of ‘我哋’ (we).
351. We accept the evidence of D16 that he was not a user of Facebook, he had a Facebook page solely used for his District Council work, which was operated by his staff. We do not see it was unreasonable for D16 to use Facebook only for his District Council work. It is not in dispute that D16 employed staff members as well as volunteers for his District Council work, we see nothing inherently improbable or unreasonable in D16’s evidence in that regard.”
359. On D16’s claim of not using WhatsApp, and how otherwise he was able to keep up to date with at least some of the developments in relation to the Primary Election after making his mind up to run, the Trial Court stated:[148]
“352. We are prepared to accept D16 was not a user of WhatsApp. He said he used iMessage but not WhatsApp. In our judgment, it would be unreasonable if D16’s evidence were that he did not use any mobile phone messaging app, but his evidence is that he used iMessage but not WhatsApp. In our judgment, whether D16 should use WhatsApp/iMessage or both was very much a personal preference. There is nothing in the prosecution’s complaint that ‘there is no apparent reason for D16 to avoid using WhatsApp while opting for iMessage.’ D16 did not avoid using WhatsApp, he just chose to use iMessage but not WhatsApp. In fact, from the photographs produced, no computer or television set could be seen at the residence of D16.
353. We appreciate the fact that D16 was not a user of WhatsApp does not mean he was not aware of the messages in the WhatsApp Group of Kowloon West of which his core volunteer Victoria Wong was a member.
354. In our judgment, as long as Victoria Wong was able to provide D16 with information about the arrangement of the Primary Election in relation to Kowloon West which D16 believed was reliable, it was not a must for D16 to find out whether Victoria Wong obtained the information through WhatsApp/ emails/ telephone communication with the organisers. We do not think it was a must for Victoria Wong to tell D16 every time when she reported about the Primary Election that she obtained the information from the organisers via the WhatsApp Group of Kowloon West.
355. We note that the messages raised by Victoria Wong in the WhatsApp group did not directly touch on the Five Demands or the vetoing of the budgets. Victoria Wong asked questions about matters like the arrangement of the Primary Election; she acknowledged that coordination regarding the Primary Election would be conducted in the group; she also expressed her concern on the arrangement of polling stations on behalf of D16.
356. We accept D16 did not pay attention to most of the logistic updates in connection with the Primary Election after the first coordination meeting of Kowloon West that he attended. Further, we also accept that he did not read Apple Daily, Facebook posts or articles of D1, PW1 or other candidates of the Primary Election concerning the latest development of the coordination amongst the pro-democracy camp. D16 had no strong reason to pay attention to these matters before he decided to run in the Primary Election.
357. In our judgment, if Mr Lee, Ms Victoria Wong and the staff members were people that D16 thought he could trust, we see no reason why he should verify the information provided by his staff about the Primary Election with D1/other organisers/other candidates (eg D14).”
360. Turning finally to the central issues, the Trial Court found D16 to have knowledge that the Project actually involved the indiscriminate vetoing of budgets so as to coerce the Chief Executive with the unattainable goals of the Five Demands (“the Scheme” in the charge): [149]
“ 358. From the evidence, we are sure the document ‘35+計劃 Project 35+’ was circulated amongst the attendees in the first coordination meeting of Kowloon West. We are sure that D16 must have received the document and read the contents of it.
359. D16 admitted also in his evidence that in the first coordination meeting of Kowloon West, D1 advocated, amongst other things, if the democrats could achieve the majority in the LegCo, they could exercise a series of constitutional powers, including the vetoing of the budgets. D1 also emphasised the importance of strategic voting for the 2020 LegCo Election.
360. While we are prepared to accept D16’s evidence that he was not a user of WhatsApp, hence, he did not receive any documents or messages circulated by D1 or other organisers via WhatsApp directly, we are sure that the coordination agreements, ie ‘35+立會過半計劃 民主派九西協調機制(初稿)’ with the file name ‘35+ Kowloon West .docx’ and ‘35+立會過半計劃 民主派九西協調機制’ with the file name ‘35+ Kowloon West final.docx’ were sent by the organisers and received by Mr Lee or Victoria Wong. We are sure that D16 must have received the aforesaid documents from Mr Lee or Victoria Wong and he must have read the contents.
361. In our judgement, there is evidence that sheds light on D16’s knowledge that it was the objective of the Project 35+ to veto the budgets indiscriminately.
362. It is not in dispute that on 20 November 2020. D16 submitted the Primary Election nomination form which contained a declaration to the effect that D16 confirmed his agreement and support of the consensus of the coordination led by D1 and PW1, including the ‘Democrats 35+ Civil Voting Project’ and its goals.
363. On the evidence, we do not accept D16’s evidence he was not aware of any consensus or agreement reached by the candidates of Kowloon West about the bundling effect of the consensus or agreement.
364. We do not accept D16’s interpretation of the contents of the IWR declaration. In our judgment, D16’s interpretation that the IWR declaration just stated the obvious that one was not bound to exercise the vetoing power even if one was elected as a LegCo member went against the plain meaning of the first Clause of the IWR declaration that it had a binding and bundling effect on the successful candidates who won their seats under the Project 35+. It was plain from the wordings of the IWR declaration that the 2 clauses reflected the consensuses and agreements reached in the coordination meetings of various constituencies.
365. Taking into consideration that D16 had read the pamphlets and manifestos of other candidates like Cheung Kwan-yeung (D14) and D44 and the fact that he was aware of the contents of the IWR declaration, we are sure that D16 was aware that one of the objectives of the Scheme was to veto the budgets indiscriminately to compel the Chief Executive to respond to the Five Demands.”
361. That having been said, and giving due regard to all the evidence as a whole, the Trial Court was nevertheless unable to be sure that D16 was a party to the Scheme. Their reasoning was as follows:[150]
“366. On the evidence before us, although D16’s name appeared on the IWR declaration and he submitted his nomination form containing the declaration in Clause 2, D16 had never advocated in his electioneering campaign to veto the budgets, not on his Facebook page or in the election forum he attended.
367. For the reasons given in the earlier part of our judgement, although the draft debate notes were found in the District Councillor office of D16, we are not sure if D16 subscribed to the contents of the notes.
368. The question that we have to ask ourselves is whether, having considered all the evidence, including any post-NSL acts and declarations and what is admissible under the Co-conspirator’s Rules, we can be satisfied that the only reasonable inference to be drawn against D16 is that he agreed to the Scheme prior to and/or after the promulgation of the NSL. We are unable to arrive at such a conclusion. We are also not sure that D16 had the intention to subvert the State power at any stage.
369. For the reasons given, we find D16 not guilty.”
O. Case stated
O1. Questions and submissions by SJ
362. Being dissatisfied with the Trial Judges’ verdict, the SJ raises two questions of law:
“(1) Having considered all the evidence, in finding that the only reasonable inference that D16 agreed to the Scheme prior to and/or after the promulgation of the NSL cannot be drawn against him, did we act contrary to the principles as stated in Li Man-wai v Secretary for Justice (2003) 6 HKCFAR 466 so that the finding is perverse? In particular:
a. Whether we failed to consider or sufficiently consider the following relevant considerations:-
(i) D16 was aware and had knowledge that one of the objectives of the Scheme was to veto the budgets indiscriminately to compel the Chief Executive to respond to the Five Demands;[151]
(ii) The fact, which D16 admitted in his evidence, that in the first coordination meeting of Kowloon West constituency held on 26 March 2020 which D16 had attended, D1 advocated, amongst other things, if the democrats could achieve the majority in the LegCo, they could exercise a series of constitutional powers, including the vetoing of the budget;[152]
(iii) The fact that the document titled ‘35+計劃 Project 35+’ [153] was circulated amongst the attendees in the first coordination meeting of Kowloon West; and that D16 must have received the said document and read the contents of it;[154]
(iv) The fact that D16 must have received from his assistant(s) and/or staff member(s) the coordination agreements, namely ‘Project 35+ Majority in LegCo Coordination Mechanism of the Democracy Camp in Kowloon West (Draft)’ (‘35+立會過半計劃民主派九西協調機制(初稿)’)[155] with the file name ‘35+ Kowloon West.docx’ and ‘Project 35+ Majority in LegCo Coordination Mechanism of the Democracy Camp in Kowloon West’ (‘35+立會過半計劃民主派九西協調機制’)[156] with the file name ‘35+ Kowloon West final.docx’; and that D16 must have read the contents;[157]
(v) The fact, which D16 admitted, that he submitted the Primary Election Nomination Form on 20 June 2020 containing a declaration to the effect that D16 confirmed his agreement and support of the consensus of the coordination led by D1 and PW1, including the ‘Democrats 35+ Civil Voting Project’ and its goals;[158]
(vi) The fact that D16 was aware of the consensus or agreement reached by the candidates of Kowloon West about the bundling effect of the consensus or agreement to veto the budget;[159]
(vii) The fact, which D16 admitted in his evidence, that he had read the pamphlets and manifestos of other candidates in Kowloon West constituency and the contents of IWR declaration;[160]
(viii) The fact that plain meaning of the first clause of the IWR declaration was that it had a binding and bundling effect on the successful candidates who won their seats under the Project 35+; and that the plain meaning of the 2 clauses of the IWR declaration reflected the consensuses and agreements reached in the coordination meetings of various constituencies;[161]
(ix) The evidence, which was admissible against D16 under co-conspirator’s rule, that in the press conference on 6 July 2020, D1 mentioned one of the objectives was the use of the vetoing power to veto the budgets and talked about the dissolution of the LegCo;[162]
(x) The evidence, which was admissible against D16 under co-conspirator’s rule, that in the press conference on 8 July 2020, D1 reiterated the objectives of the Project 35+ were to obtain a majority of the LegCo and to exercise the power to veto the budgets;[163] and
(xi) The fact that D16 participated in the Primary Election and there was no withdrawal from his participation after the promulgation of the NSL; and/or
b. Whether we took into account or placed undue weight on irrelevant considerations, including the evidence that D16 had never advocated for vetoing the budgets in his electioneering campaign, Facebook page or the Election Forum he attended.
(2) Having considered all the evidence, in failing to find that D16 had the intention to subvert the State power at any stage, did we act contrary to the principles as stated in Li Man-wai v Secretary for Justice (2003) 6 HKCFAR 466 so that the finding is perverse? In particular:
a. Whether we failed to consider or sufficiently consider the relevant considerations as set out in (1)(i) to (xi) above; and/or
b. Whether we took into account or placed undue weight on irrelevant considerations, including the evidence that D16 had never advocated for vetoing the budgets in his electioneering campaign, Facebook page or the Election Forum he attended.”
363. In essence, the argument advanced by the SJ is that the bulk and weight of the evidence against D16 was overwhelming. Briefly stated, that evidence and the number of important findings of fact thus arising are as follows:
(1) D16 was cognizant of the true objective of the Scheme;
(2) he was aware of the consensus reached by Kowloon West candidates on bundling their positions as regards the vetoing of budgets;
(3) his name appeared as a signatory of the IWR Declaration on someone’s Facebook with no retraction on his part;
(4) he filed his Nomination Form with full appreciation of what the consensus in the form was really referring to;
(5) D1’s continued advocacy of the Scheme after the promulgation of the NSL; and
(6) D16’s failure to withdraw from the Primary Election.
364. This combination of evidence and findings, the SJ argues, is not to be detracted by the mere fact that D16 had never directly advocated for the indiscriminate vetoing of budgets either orally or in any other form in his election campaign. The substance of a conspiracy charge is in the agreement, not the outward conduct of a defendant. It remains the only reasonable inference that D16 was a party to the Scheme and that he had the intent to subvert the State power. The Trial Court’s findings to the contrary were therefore perverse and warrant the interference of the Court of Appeal.
O2. D16’s submissions
365. D16 stresses the point that the Trial Court’s findings were all findings of fact with which the Court of Appeal does not lightly interfere. He refers to Secretary for Justice v Lo Kin Hei [2025] HKCA 294, an appeal by way of case stated in which the acquitted defendant – a district councillor – was found to have deliberately situated himself in an unlawful assembly to “reap political capital”, but was actually without the prerequisite mens rea. In dismissing the SJ’s application, this Court (differently constituted) observed at §59:[164]
“Whilst not necessarily the conclusion of other fact-finders, the conclusion of the original trial judge is by no means perverse.”
366. Drawing support from the summary of evidence annexed to the Stated Case,[165] he repeats what he said in evidence about the Primary Election, that is, he considered it to be just an “intra-camp competition to earn the legitimacy to run” and not something that “would affect or compromise [his] conduct of legislative affairs if elected”. He says changing the law on public order and increasing the transparency of judicial appointments and the provision of legal aid were the things that he advocated in his election campaign, not the Five Demands.
367. In sum, it is the submission of D16 that (a) in an election campaign, what a candidate refrains from openly supporting is as important as his positive advocacy for identifying the candidate’s platform; and (b) the weight that the Trial Court placed on the complete lack of reference to the vetoing of budgets in D16’s platform was therefore not misguided:[166]
“[The SJ’s position] is a blatantly biased stand to the extent that it flagrantly chooses to ignore that, in a political campaign ….., a candidate would positively promote and advocate what he wants the electorate to believe that he would be pursuing (whether he would eventually pursue upon being elected is another matter). My deliberate refraining from (not omission of!) promoting the vetoing of the budget and the Five Demands was another kind of positive overt act. That shall carry a weight as equal as what the other candidates professed to pursue. The allegation of silent co-conspirator is unsound at all as the Scheme and the Primary Election were held openly in broad daylight in the market of public opinions. Any suggestion that a co-conspirator (I am not found as one) need not overtly promote the Scheme is hollowly academic in the present case and plainly missed the point of political campaign.”
P. Consideration
368. Significantly, these were the findings of the Trial Court:
(1) commencing from the first CM for Kowloon West, D16 was aware of the true purpose of the Scheme;
(2) his support team had the means to find out and had in fact kept D16 updated on at least the most important developments of the Primary Election, including the consensus reached by all the other candidates for Kowloon West on veto bundling – to use a shorthand way of expression;
(3) having read the IWR Declaration, D16 could have no mistake on its plain meaning including the part on veto bundling; and
(4) having checked out the Nomination Form, it must also be clear to D16 that the consensus mentioned in it referred to the same thing.
369. Equally significantly, however, the Trial Court accepted that D16 was not the one who put his name down as a signatory of the IWR Declaration; and that D16 was in a “catch-22 situation” after this discovery, and it was for that same reason that he decided not to speak out. These were positive findings of fact. Taken together with the fact that D16 never openly and directly advocated for the Five Demands and/or veto bundling, these findings were also consistent with D16’s claim that he was merely “seeking legitimacy to run” and did not feel bound by any undertakings. That he might believe this strategy to work may have to do with his personality about which the Trial Court had made some very early comments. The Nomination Form did not help the prosecution because it was a document which D16 must sign to be accepted as a candidate. It added nothing to the analysis. So was D16’s non-withdrawal from the Primary Election after the promulgation of the NSL. If D16 believed he was acting outside the NSL, there was no reason for him to withdraw.
370. Thus analyzed, the totality of evidence suggests that D16’s case was in a way comparable to the acquitted defendant in Secretary for Justice v Lo Kin Hei. What he intended and did might be having a free ride on the Primary Election. It must be what bore on the Trial Court and they were entitled to have that doubt.
Q. Disposal
371. In conclusion, we are not satisfied that the findings by the Trial Court were perverse. The application of the SJ is therefore dismissed. The acquittal of D16 stands.
(Jeremy Poon)
Chief Judge of the
High Court
|
(Derek Pang)
Justice of Appeal
|
(Anthea Pang)
Justice of Appeal
|
Mr Anthony Chau, DDPP, Mr Derek Lau, SADPP, Mr Andy Lo, ADPP(Ag.), Ms Karen Ng, SPP, Ms Jennifer Tsui, SPP, of the Department of Justice, for the Respondent in CACC 253/2024 & CACC 263/2024, and the Appellant in CACC 268/2024
CACC 253/2024
Mr Cheung Yiu-leung and Mr Elson Tong, instructed by Chiu, Szeto & Cheng, for the 1st Applicant (D10)
Mr Erik Shum, Ms Christy Wong and Mr Isaac Wu, instructed by Ho, Tse, Wai & Partners, for the 2nd Applicant (D17) and the 6th Applicant (D38)
Mr Steven Kwan and Mr Donald Ting, instructed by Ho, Tse, Wai & Partners, for the 3rd Applicant (D37)
Mr Robert Pang SC and Ms Yvonne Leung, instructed by O Tse & Co, for the 4th Applicant (D47)
Mr Trevor Beel and Ms Pricilla Lau (both on pro bono basis), instructed by Ho, Tse, Wai & Partners, for the 5th Applicant (D33)
Mr Steven Kwan (on conviction only) and Ms Yvonne Leung, instructed by Ho Kan Lawyers, for the 7th Applicant (D5)
Ms Money Lo, instructed by Paul W. Tse, for the 8th Applicant (D11)
Mr Hectar Pun SC, Mr Anson Wong Yu Yat and Ms Ferrida Chan, instructed by Kenneth Lam, Solicitors, for the 9th Applicant (D8) and the 12th Applicant (D41)
Mr David Ma and Mr Emanuel Law, instructed by O Tse & Co, for the 10th Applicant (D14)
Mr David Ma and Ms Denise Or, instructed by O Tse & Co, for the 11th Applicant (D36)
CACC 263/2024
Ms Breanne Kwok, instructed by Ho, Tse, Wai & Partners, for the Applicant (D27)
CACC 268/2024
The Respondent (D16) appeared in person
Annex
|
Defendants
|
Plea
Pleaded Guilty (PG) /
Pleaded Not Guilty (PNG)
|
Sentence
(Imprisonment terms)
|
|
D1
|
TAI Yiu-ting (戴耀廷)
|
PG
|
120 months
|
|
D2
|
AU Nok-hin (區諾軒)
|
PG
|
81 months
|
|
D3
|
CHIU Ka-yin Andrew (趙家賢)
|
PG
|
84 months
|
|
D4
|
CHUNG Kam-lun (鍾錦麟)
|
PG
|
73 months
|
|
D5
|
NG Gordon Ching-hang (吳政亨)
|
PNG
|
87 months
|
|
D6
|
YUEN Ka-wai Tiffany (袁嘉蔚)
|
PG
|
51 months
|
|
D7
|
LEUNG Fong-wai Fergus (梁晃維)
|
PG
|
59 months
|
|
D8
|
CHENG Tat-hung (鄭達鴻)
|
PNG
|
78 months
|
|
D9
|
CHUI Chi-kin (徐子見)
|
PG
|
50 months
|
|
D10
|
YEUNG Suet-ying Clarisse (楊雪盈)
|
PNG
|
78 months
|
|
D11
|
PANG Cheuk-kei (彭卓棋)
|
PNG
|
78 months
|
|
D12
|
SHAM Tsz-kit (岑子杰)
|
PG
|
51 months
|
|
D13
|
MO Man-ching Claudia (毛孟靜)
|
PG
|
50 months
|
|
D14
|
HO Kai-ming Kalvin (何啟明)
|
PNG
|
79 months
|
|
D15
|
FUNG Tat-Chun Frankie (馮達浚)
|
PG
|
53 months
|
|
D17
|
WONG Pik-wan (黃碧雲)
|
PNG
|
78 months
|
|
D18
|
LAU Chak-fung (劉澤鋒)
|
PG
|
53 months
|
|
D19
|
WONG Chi-fung (黃之鋒)
|
PG
|
56 months
|
|
D20
|
TAM Man-ho Jeremy Jansen (譚文豪)
|
PG
|
50 months
|
|
D21
|
LI Ka-tat (李嘉達)
|
PG
|
51 months
|
|
D22
|
TAM Tak-chi (譚得志)
|
PG
|
53 months
|
|
D23
|
WU Chi-wai (胡志偉)
|
PG
|
53 months
|
|
D24
|
SZE Tak-loy (施德來)
|
PNG
|
79 months
|
|
D25
|
CHU Hoi-dick Eddie (朱凱迪)
|
PG
|
53 months
|
|
D26
|
CHEUNG Ho-sum (張可森)
|
PG
|
59 months
|
|
D27
|
WONG Ji-yuet (黃子悅)
|
PG
|
53 months
|
|
D28
|
NG Kin-wai (伍健偉)
|
PG
|
67 months
|
|
D29
|
WAN Siu-kin Andrew (尹兆堅)
|
PG
|
56 months
|
|
D30
|
KWOK Ka-ki (郭家麒)
|
PG
|
50 months
|
|
D31
|
NG Man-yee Carol (吳敏兒)
|
PG
|
53 months
|
|
D32
|
TAM Hoi-pong (譚凱邦)
|
PG
|
51 months
|
|
D33
|
HO Kwai-lam (何桂藍)
|
PNG
|
84 months
|
|
D34
|
LAU Wing-hong (劉穎匡)
|
PG
|
53 months
|
|
D35
|
YEUNG Alvin Ngok-kiu (楊岳橋)
|
PG
|
61 months
|
|
D36
|
CHAN Chi-chuen Raymond (陳志全)
|
PNG
|
78 months
|
|
D37
|
CHOW Ka-shing (鄒家成)
|
PNG
|
93 months
|
|
D38
|
LAM Cheuk-ting (林卓廷)
|
PNG
|
81 months
|
|
D39
|
FAN Gary Kwok-wai (范國威)
|
PG
|
50 months
|
|
D40
|
LUI Chi-hang Hendrick (呂智恆)
|
PG
|
51 months
|
|
D41
|
LEUNG Kwok-hung (梁國雄)
|
PNG
|
81 months
|
|
D42
|
LAM King-nam (林景楠)
|
PG
|
62 months
|
|
D43
|
OR Yiu-lam Ricky (柯耀林)
|
PNG
|
79 months
|
|
D44
|
SHUM Lester (岑敖輝)
|
PG
|
54 months
|
|
D45
|
WONG Pak-yu (王百羽)
|
PG
|
51 months
|
|
D47
|
YU Wai-ming Winnie (余慧明)
|
PNG
|
81 months
|
[1] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (30 June 2020), which was promulgated in Chinese. The English translation used in this judgment is contained in GN (E) 72 of 2020.
[2] Cap 200.
[3] The Basic Law of the Hong Kong Special Administrative Region, adopted and promulgated by the Third Session of the Seventh National People’s Congress of the PRC on 4 April 1990, and came into effect on 1 July 1997.
[4] They are D1 to D4, D6, D7, D9, D12, D13, D15, D18 to D23, D25 to D32, D34, D35, D39, D40, D42, D44 and D45.
[5] Constituted pursuant to NSL 46 and consisting of Andrew Chan J, Alex Lee J and Johnny Chan J.
[6] Reasons for Verdict, [2024] HKCFI 1468. The 14 convicted defendants are D5, D8, D10, D11, D14, D17, D24, D33, D36 to D38, D41, D43 and D47.
[7] Reasons for Sentence, [2024] HKCFI 3298. For easy reference, the 45 convicted defendants’ individual plea and sentence are set out in the Annex to this judgment.
[8] D11 previously applied for leave to appeal against both conviction and sentence but he abandoned both applications by a notice of abandonment dated 11 July 2025. His counsel, Ms Money Lo, confirmed the abandonment at the hearing on 14 July 2025, whereupon this Court formally dismissed both applications.
[9] D33 had applied for leave to appeal against sentence but abandoned the same on 8 May 2025, which was deemed to be dismissed, under rule 39 of the Criminal Appeal Rules, Cap 221A.
[10] D22, another defendant who pleaded guilty, also applied for leave to appeal against sentence, which was deemed to be dismissed when he abandoned it on 22 May 2025.
[11] The number 35+ represented the then majority of the seats in the LegCo.
[12] A summary of the PWs’ evidence is in Annex A to the Reasons for Verdict.
[13] According to D2, PfD was a non-government body established in 2002, with the aim of coordinating the pan-democratic camp and promote collaboration within the camp.
[14] A summary of the defence evidence is in Annex B to the Reasons for Verdict.
[15] Reasons for Verdict, [109] - [116].
[16] Reasons for Verdict, [125]. The Trial Court made it clear that the publication of the articles by D1 simply provided a general background to the case. They did not rely on the truth of their contents or on the operation of the co-conspirators’ rule as an exception to the rule against hearsay.
[17] Reasons for Verdict, [139].
[18] Reasons for Verdict, [144] - [145].
[19] Reasons for Verdict, [156].
[20] Reasons for Verdict. [161], [167].
[21] Reasons for Verdict, [179] - [180].
[22] Reasons for Verdict, [181].
[23] Reasons for Verdict, [128] - [133].
[24] Reasons for Verdict, [181] - [189].
[25] Reasons for Verdict, [172] - [176].
[26] Reasons for Verdict, [177] - [178].
[27] Reasons for Verdict, [323] - [324].
[28] Reasons for Verdict, [182].
[29] Reasons for Verdict, [183].
[30] Reasons for Verdict, [188].
[31] Reasons for Verdict, [189].
[32] Reasons for Verdict, [190]. At the end of the same paragraph, the Trial Court noted the Chief Executive is the head of the Government of the HKSAR.
[33] We note at [9] of the Reasons for Verdict, the Trial Court broke down the elements of a NSL 22 offence in a way that is slightly different from ours. Nothing turns on that difference for present purposes. However, we wish to make it clear that what we have stated should be followed in the future.
[34] See primarily, the Joint Written Submissions of D5, D17, D37, D38 and D47 (“the 5 Applicants”).
[35] GOA 3 of the 5 Applicants, GOA 4 of D8, GOA 2 of D41.
[36] GOA 4 of the 5 Applicants, GOA 4 of D8, GOA 1(A) and (B) of D33, GOA 2 of D41.
[37] GOA 2 of D14 and D36.
[38] GOA 1 of the 5 Applicants, GOA 4 of D8, GOAs 1 and 3 of D14, GOA 1(A) of D33, GOAs 1 and 3 of D36, GOA 2 of D41.
[39] GOA 2 of the 5 Applicants, GOA 1 of D14, GOA 1 of D36.
[40] That was exactly what the Court of Final Appeal did in Lai Chee Ying in relation to bail under NSL 42(2) and Lui Sai Yu on the use of extrinsic materials in aid of construction of the NSL.
[41] NSL 2 provides that: “The provisions in Articles 1 and 12 of the Basic Law of the Hong Kong Special Administrative Region on the legal status of the Hong Kong Special Administrative Region are the fundamental provisions in the Basic Law. No institution, organization or individual in the Region shall contravene these provisions in exercising their rights and freedoms.”
[42] In Chapter I on General Principles.
[43] In Chapter II on the Duties and the Government Bodies of the Hong Kong Special Administrative Region for Safeguarding National Security.
[44] Reasons for Verdict, [35].
[45] Together with Ms Yvonne Leung and Mr Colman Li for D5; and Mr Donald Ting for D37.
[46] The relevant Chinese text read: 「... 任何分裂國家、顛覆國家政權、組織實施恐怖活動等嚴重危害國家安全的行為和活動以及外國和境外勢力干預香港特別行政區事務的活動。...」.
[47] Leading Ms Yvonne Leung.
[48] Together with Mr Derek Lau, SADPP, Mr Andy Lo, ADPP (Ag.), Ms Karen Ng, SPP and Ms Jennifer Tsui, SPP.
[49] Together with Mr Emanuel Law for D14 and Ms Denise Or for D36.
[50] BL 1 provides: “The [HKSAR] is an inalienable part of the [PRC].”
[51] BL 2 provides: “The [NPC] authorizes the [HKSAR] to exercise a high degree of autonomy and enjoy executive, legislative and independent judicial power, including that of final adjudication, in accordance with the provisions of this Law.”
[52] BL 12 provides: “The [HKSAR] shall be a local administrative region of the [PRC], which shall enjoy a high degree of autonomy and come directly under the [CPG]”
[53] BL 11(1) provides: “In accordance with Article 31 of the Constitution of the [PRC], the systems and policies practised in the [HKSAR], including the social and economic systems, the system for safeguarding the fundamental rights and freedoms of its residents, the executive, legislative and judicial systems, and the relevant policies, shall be based on the provisions of this Law.”
[54] Article 31 of the Constitution provides that “The state may establish special administrative regions when necessary. The systems instituted in special administrative regions shall, in light of specific circumstances, be prescribed by laws enacted by the [NPC].” Further, pursuant to Article 62, the NPC may decide on the establishment of special administrative regions and the systems to be instituted there (sub-paragraph (14)); and to enact basic laws (sub-paragraph (3)).
[55] BL 11(2) expressly prohibits the LegCo from enacting laws that contravene the Basic Law.
[56] Instrument 25.
[57] Instrument 27.
[58] Cap 11.
[59] Together with Ms Christy Wong and Mr Issac Wu.
[60] Mr Hecter Pun SC leading Mr Anson Wong and Ms Ferrida Chan, for D8 and D41, Mr Trevor Beel, together with Ms Pricilla Lau, for D33, and Mr David Ma, together with Mr Emanuel Law, for D14; and with Ms Denise Or, for D36, also made submissions to supplement Mr Shum’s. Their submissions differ from Mr Shum’s only in nuances and emphasis but not in substance. So we will not deal with them separately.
[61] The arrangements for the submission of the budgets to the LegCo for its approval are set out in the Public Finance Ordinance, Cap 2 which provides for the control and management of public finances of the HKSAR. The process is further governed by the relevant provisions in the LegCo’s Rules of Procedure of the LegCo, and the Finance Committee Procedure. Examination of the budgets is principally carried out by the Finance Committee.
[62] See [19] of the 5 Applicants’ Joint Written Submissions.
[63] Reasons for Verdict, [123].
[64] Reasons for Verdict, [125].
[65] Reasons for Verdict, [181], [222], [295] and [387].
[66] Reasons for Verdict, [168].
[67] See [25] above.
[68] Reasons for Verdict, [594] - [608].
[69] Exhibit D5-4B, p 7.
[70] Reasons for Verdict, [604].
[71] Reasons for Verdict, [158], [164] and [168].
[72] Reasons for Verdict, [194] - [216].
[73] Reasons for Verdict, [221].
[74] Reasons for Verdict, [218] - [220].
[75] Reasons for Verdict, [222] - [223].
[76] Reasons for Verdict, [231].
[77] Reasons for Verdict, [230].
[78] Reasons for Verdict, [231].
[79] Reasons for Verdict, [328].
[80] Reasons for Verdict, [282].
[81] Reasons for Verdict, [283] - [287].
[82] Reasons for Verdict, [335].
[83] Reasons for Verdict, [135] - [139].
[84] Reasons for Verdict, [387].
[85] Reasons for Verdict, [413] - [414].
[86] Trial Bundle 8, p 712.
[87] Reasons for Verdict, [525] - [532].
[88] In the same terms as section 159A of the Crimes Ordinance.
[89] Reasons for Verdict, [474].
[90] Reasons for Verdict, [482].
[91] Reasons for Verdict, [475].
[92] Reasons for Verdict, [478].
[93] Reasons for Verdict, [482].
[94] Reasons for Verdict, [514].
[95] Reasons for Verdict, [585].
[96] Reasons for Verdict, [587] - [588].
[97] Trial Bundle 7, p 1451.
[98] Trial Bundle 8/A105A/1966 &Trial Bundle 8/A105B/1976-77.
[99] Trial Bundle 8/A118B/2350-2351 & Trial Bundle 8/A118C/2361-2362.
[100] Reasons for Verdict, [588].
[101] Reasons for Verdict, [589].
[102] Reasons for Verdict, [591].
[103] Reasons for Verdict, [589].
[104] Reasons for Verdict, [589].
[105] Reasons for Verdict, [587] - [593].
[106] Reasons for Verdict, [592].
[107] See Footnote 10 in the judgment in Lai Oi Yan.
[108] Lai Oi Yan, [69].
[109] [17] and [18] of D47’s written submissions.
[110] Produced from the audio disc containing D47’s evidence. The audio disc was given to D47 prior to the appeal for her preparation of the appeal hearing.
[111] Annex B to the Reasons for Verdict, [829] - [847].
[112] D5’s interview by DW3 on 17 June 2020.
[113] Ibid., pp 300G-301F.
[114] Digest 36.
[115] Reasons for Verdict, [599].
[116] Reasons for Sentence, [10].
[117] Reasons for Sentence, [20].
[118] Reasons for Sentence, [22].
[119] Reasons for Sentence, [34].
[120] Reasons for Sentence, [37].
[121] Reasons for Sentence, [74] – [75]; see [319] – [320] below.
[122] Reasons for Sentence, [24] – [30].
[123] Reasons for Sentence, [283].
[124] We on 5 September 2025 refused to certify the question if the penalty bands in NSL 21 applies to conspiracy for the defendant’s leave to appeal to the Court of Final Appeal. The Appeal Committee subsequently on 3 November 2025 dismissed his application for leave to appeal under rule 7 of the Hong Kong Court of Final Appeal Rules, Cap 484A: FAMC 24/2025.
[125] Wu Man Hon was a case of police entrapment. Dihren Barot on the other hand concerns a conspiracy to carry out a terrorist bomb attack which, on appeal, was found to be technically impossible to effect the horrendous damage it was intended to cause but on which basis the judge had passed sentence.
[126] For example, Pitchford and Cook is about renting out premises as a place for consenting adults to engage in group sexual activities.
[127] They are D6, D7, D26 and D44, all of whom had pleaded guilty and are not parties to this appeal.
[128] Reasons for Sentence, [306].
[129] Reasons for Sentence, [224].
[130] Reasons for Sentence, [286].
[131] His Lordship said at [23] of the judgment: “If the second offence which takes place in the course of the suggested single episode adds to the culpability of the first offence, it will normally follow that the sentence for the second offence will run wholly or partially consecutive to that for the first; to what extent, if at all, will depend upon an assessment of the totality appropriate for the conduct as a whole. As with most sentencing exercises, the approach is an art, sensitive to the individual circumstances of the case and the offender.”
[132] Section 6(3A): “However, if a prisoner serves a sentence in respect of the prisoner’s conviction of an offence endangering national security, the Commissioner must not refer to the Board for its consideration under subsection (3) the case of the prisoner unless the Commissioner is satisfied that an early release of the prisoner will not be contrary to the interests of national security.”
[133] The following summary is based on Annex B of the Reasons for Verdict, from which the Case Stated is specifically said to have drawn its contents as regards D16’s evidence (see [18] of the Case in which the same annex is known as Annex 2).
[134] Annex B at [225] - [226].
[135] Annex B at [227] - [234], [262].
[136] Annex B at [236] - [240].
[137] Annex B at [241] - [257], [325].
[138] Annex B at [258] - [263], [307] - [310], [313] - [314].
[139] Annex B at [265] - [267].
[140] Annex B at [262], [268] - [273], [286], [336] - [339].
[141] Annex B at [278] - [279].
[142] Annex B at [283], [300] - [301], [305], [331], [342].
[143] Annex B at [280], [329].
[144] Reasons for Verdict, [343].
[145] P1330 [TB10/117A/4475-4479]; CT[TB10/117B/4480-4491]).
[146] Reasons for Verdict, [344].
[147] Reasons for Verdict, [345] - [351].
[148] Reasons for Verdict, [352] - [357].
[149] Reasons for Verdict, [358] - [365].
[150] Reasons for Verdict, [366] - [369].
[151] Reasons for Verdict, [365].
[152] Reasons for Verdict, [359].
[153] Exhibits P590-5 and its English translation P590-5(CT).
[154] Reasons for Verdict, [358].
[155] Exhibits P590-2 and its English translation P590-2(CT).
[156] Exhibits P2883-6 and its English translation P2883-6 (CT).
[157] Reasons for Verdict, [360].
[158] Reasons for Verdict, [362].
[159] Reasons for Verdict, [363].
[160] Reasons for Verdict, [365].
[161] Reasons for Verdict, [364].
[162] Reasons for Verdict, [172] - [173].
[163] Reasons for Verdict, [172] - [173].
[164] Chinese original: 原審法官的結論, 雖然不一定會是其他事實裁斷者的結論, 但也絕非有悖常理.
[165] Annex B at [259] and [309].
[166] D16’s written submissions, [8].
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