HKSAR v. CHAN TSZ WAH AND ANOTHER

Press Summary (English)

Press Summary (Chinese)

HCCC 147/2021, HCCC 51/2022 & HCCC 52/2022

(Heard together)

[2026] HKCFI 854

HCCC 147/2021

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 147 OF 2021

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HCCC 51/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 51 OF 2022

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HCCC 52/2022

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 52 OF 2022

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(Heard Together)

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REASONS FOR SENTENCE

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Introduction

Procedural history

1.  These three cases concern the same facts and one similar charge pertains to all cases. They were assigned different case numbers as the defendants concerned were charged and committed at different times. Eight defendants pleaded guilty to an offence of conspiracy to commit collusion, contrary to Article 29(4) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (“NSL”) and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (“the charge”[1]), in the Magistrates’ Court in the committal proceedings. Those defendants were Chan Tsz-wah (“Wayland”) and Li Yu-hin (“Andy”) in HCCC 147/2021[2]; and Cheung Kim-hung (“Cheung”), Chan Pui-man (“Chan”), Law Wai-kwong (“Law”), Lam Man-chung (“Lam”), Fung Wai-kong (“Fung”) and Yeung Ching-kee (“Yeung”) in HCCC 52/2022[3]. Their respective cases were committed to the Court of First Instance for sentence.

2.  As regards HCCC 51/2022, the defendants, namely Lai Chee-ying (“Lai”), Apple Daily Limited, Apple Daily Printing Limited and AD Internet Limited (the latter three collectively referred to as “the Corporate Defendants”) pleaded not guilty to the charge and another charge[4] in the committal proceedings[5]. Thus, their case was committed to the Court of First Instance for trial.

3.  On 19 August 2021, the defendants in HCCC 147/2021 (namely Wayland and Andy) confirmed their pleas before Alex Lee J, who ordered that their sentence be adjourned to the end of the trial of HCCC  51/2022.

4.  On 22 November 2022, the defendants in HCCC 52/2022 (namely Cheung, Chan, Law, Lam, Fung and Yeung) confirmed their pleas before this Court and their sentence was similarly adjourned.  

The charges

5.  Lai and the Corporate Defendants faced a joint charge of conspiracy to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap. 200 (“Count 1”); and a joint charge of conspiracy to commit collusion with a foreign country or with external elements to endanger national security, namely, to request a foreign country or an institution, organisation or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China, to impose sanctions or blockade, or engage in other hostile activities (collectively referred to as “SBHA”) against the Hong Kong Special Administrative Region (“HKSAR”) or the People’s Republic of China (“PRC”), contrary to Article 29(4) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (“NSL”) and sections 159A and 159C of the Crimes Ordinance, Cap. 200 (“Count 2”). Lai was additionally indicted for another charge of conspiracy to commit collusion with a foreign country or with external elements to endanger national security (“Count 3”).

6.  The particulars of the charges of Lai and the Corporate Defendants are set out in our Reasons for Verdict. It is pertinent to note that Count 2 is identical to the charge to which Cheung, Chan, Law, Lam, Fung and Yeung have pleaded guilty. Similarly, Count 3 is identical to the charge to which Wayland and Andy have pleaded guilty.

7.  On 15 December 2025 Lai was found guilty of all counts (1, 2 and 3) and the Corporate Defendants were found guilty of Count 1 and Count 2. In the lengthy trial which lasted for 156 days, Cheung, Chan, Yeung, Wayland and Andy gave evidence for the prosecution.

8.  On the same day, this Court gave directions that the mitigation and sentence of the respective defendants in HCCC 51/2022 and HCCC 52/2022 be dealt with together. Alex Lee J also gave similar directions in respect of HCCC 147/2021, so that the mitigation and sentence of the three cases could be dealt with by the same court at the same time.

9.  The facts pertaining to the charges and the respective roles of the defendants in the offences have been set out in our Reasons for Verdict and we are not going to repeat those. We note that, for sentencing purposes, there is no material difference between our factual findings in the Reasons for Verdict and the Summary of Facts admitted by those defendants who have pleaded guilty.

Antecedents

HCCC 147/2021

Wayland

10.  He is now aged 34 and is single. He has a clear record. He was born in the UK. He attained a Bachelor’s Degree in Law in the UK and obtained a Master’s Degree in Chinese Law in Hong Kong. He worked as a paralegal in a law firm in Hong Kong.

Andy

11.  He is now aged 35 and is single. He has a clear record in Hong Kong. He completed tertiary education and worked as a computer programmer.

12.  On 23 August 2020, Andy fled Hong Kong for Taiwan, during which he unlawfully entered the mainland waters and was arrested by the PRC authorities. He was returned to Hong Kong on 22 March 2021.

HCCC 51/2022

Lai

13.  He was born in 1947 and is now aged 78. He is married and has six children. His colourful life and business history have already been covered in our Reasons for Verdict and we are not going to repeat those. It suffices for us to say that at all material times he was the majority shareholder of Next Digital Limited (a publicly listed company) which owned Apple Daily.

14.  Lai has six previous convictions of which two are for taking part in an unauthorised assembly; one for holding/assisting in holding/organising an unauthorised assembly; and one for incitement to knowingly take part in an unauthorised assembly. For these four public order offences he was sentenced in 2021 to various imprisonment terms ranging from 8 months to 14 months which have all been served.

15.  Lai’s fifth and sixth convictions are for the offence of fraud[6], for which he was sentenced to a total term of 5 years and 9 months’ imprisonment on 10 December 2022. He is still serving that term of imprisonment. We are informed that he will have served this term on 11 June 2026, or, without a one-third remission, on 11 May 2028.

Apple Daily Limited

16.  The company was the registered proprietor and publisher of Apple Daily since 27 January 1995. It has a total of 71 previous convictions comprising:

(a)  one conviction of publishing or broadcasting a report of committal proceedings containing matters other than permitted (1997);

(b)  one conviction of printing, publishing or causing to be published a smoking product advertisement in a printed publication (2012);

(c)  seven convictions of publishing or causing to be published advertisements relating to medical and health matters (2005 to 2013); and

(d)  62 convictions of publishing an indecent article (1996 to 2009).

Apple Daily Printing Limited

17.  The company was the registered printer of Apple Daily since 10 January 1998. It has three previous convictions comprising:

(a)  printing, publishing or causing to be published a smoking product advertisement in a printed publication (2012);

(b)  breach of licence (2022); and

(c)  manufacturing, storing, conveying or using dangerous goods (2022).

AD Internet Limited

18.  The company was the registered owner of the domain name “appledaily.com.hk” ever since 9 June 2011 and it managed various online platforms of Apple Daily. It has a clear record.

HCCC 52/2022

Cheung

19.  He is now aged 64 and is single. He has a clear record. After graduation from the Chinese University of Hong Kong, he pursued a career in journalism. He joined Apple Daily in 2011, working his way up the ladder to eventually becoming the Chief Executive Officer of Next Digital Limited.

Chan

20.  She is now aged 56 and is married. She has a clear record. She obtained a Bachelor’s Degree in Business Administration from the Chinese University of Hong Kong. After that, she started her career as a reporter and later became the Editor-in-Chief of Apple Daily. In 2016, she was diagnosed with uterine cancer for which she underwent a series of surgeries. She is required to attend regular follow-ups to monitor her medical condition until at least 2026. For health reasons, she stepped down from the post of Editor-in-Chief and became the Associate Publisher of Apple Daily.

Law

21.  He is now aged 52 and is married. He has a clear record. He graduated from the University of Hong Kong with a Bachelor’s Degree in Arts. At all material times, he was the Editor-in-Chief of Apple Daily.

Lam

22.  He is now aged 56 and is married. He obtained a Bachelor’s Degree in Arts from the University of Hong Kong and a Master’s Degree in Journalism from the Chinese University of Hong Kong. At all material times, he was the Executive Editor-in-chief of Apple Daily. He has a traffic-related record in 2018 which we will ignore for the purpose of sentencing.

Fung

23.  He is now aged 62 and is married with an adult son. He has a clear record. He graduated from the Chinese University of Hong Kong with a Master’s Degree in Journalism. He also obtained a Master’s Degree in Politics and International Relations from Lancaster University. He re-joined Apple Daily in June 2020 after the English News was launched as its Managing Editor.

Yeung

24.  He is now aged 60 and is married with an adult son. He has a clear record. He was born on the Mainland and received university education there. He immigrated to Hong Kong in 1993 and worked for Apple Daily since 1998. At all material times, he was in charge of the Editorial and Apple Forum.

Relevant sentencing principles

Count 2 and Count 3

25.  We shall start with these counts which are obviously more serious than Count 1.

26.  NSL 29[7] provides:

「犯前款罪，處三年以上十年以下有期徒刑；罪行重大的，處無期徒刑或者十年以上有期徒刑。」

“A person who commits the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; 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.”

27.  Thus, NSL 29 provides a sentencing framework by specifying two sentencing bands and the court is duty bound to decide which one is applicable. If the offence is of a “grave nature” (「罪行重大」), the offender “shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years”. Otherwise, he or she “shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years”. It is now settled that the sentencing bands prescribed for offences under the NSL are mandatory in the sense that, save and except for the operation of NSL 33, the final sentence imposed shall not fall below the lower limit of the applicable sentencing band: HKSAR v Lui Sai Yu[8].

28.  Whilst Count 2 and Count 3 are conspiracy charges rather than substantive charges, it has been held by the Court of Appeal that, subject to NSL 33, the sentence for a conspiracy to commit a NSL offence shall comply with the mandatory sentencing bands prescribed for such NSL offence: HKSAR v Wong Kin Chung[9].

The sentencing steps

29.  Based on the judgment of the Court of Final Appeal in HKSAR v Lui Sai Yu, ante, when determining the proper sentences of Count 2 and Count 3 for a particular defendant being considered, the following steps should be taken:

(a)  determine the applicable sentencing band;

(b)  fix the starting point within the applicable sentencing band;

(c)  make adjustments from the starting point for the relevant aggravating and mitigating factors (not including the NSL 33 factors, if any) and arrive at a provisional sentence which must be located within the applicable sentencing band;

(d)  determine if NSL 33 is engaged; and

(e)  if NSL 33 is engaged, determine to what extent a reduction of the sentence provisionally determined may be merited.

The sentencing scheme of NSL 29

30.  We have the following further observations regarding the sentencing scheme of NSL 29:

(a)  It carries the same maximum sentence as the other major NSL offences, namely secession (NSL 20); subversion (NSL 22); terrorist activities (NSL 24); and terrorist organisation (NSL 25), which is life imprisonment.

(b)  The minimum sentence, however, is 3 years’ imprisonment, which is unlike NSL 20, 22 and 25 where the lesser sentencing options of “short-term detention” and “restriction” (as defined in NSL 64) can be available.

(c)  Both NSL 29 and NSL 30 are contained in Chapter III, Part 4 of the NSL and the two articles are the only provisions in that part. NSL 30 reads:

“為實施本法第二十條、第二十二條規定的犯罪，與外國或者境外機構、組織、人員串謀，或者直接或者間接接受外國或者境外機構、組織、人員的指使、控制、資助或者其他形式的支援的，依照本法第二十條、第二十二條的規定從重處罰。”

“A person who conspires with or directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an institution, organisation, or individual outside the mainland, Hong Kong, and Macao of the People’ s Republic of China to commit the offences under Article 20 or 22 of this Law shall be liable to a more severe penalty in accordance with the provisions therein respectively.”

31.  Based on the above observations, we come to the view that it is the legislative intent that, other things being equal, the engagement of a foreign entity in endangering national security is generally to be regarded as an offence of a more serious nature which has to be met with a more severe penalty.  

32.  For the avoidance of doubt, we need to point out the following. First, we mention NSL 30 in the above discussion just for the purpose of showing the aforesaid legislative intent behind Part 4 of the NSL. Secondly, the sentences of the defendants are not to be enhanced by the operation of NSL 30, as Mr Chau, for the prosecution, has fairly agreed that NSL 30 is not applicable to the present case.

“Offence of a grave nature” (「罪行重大」)

33.  This phrase, which also appears in the penalty sections of NSL 20, 22 and 29 only, has not been statutorily defined.

34.  In HKSAR v Lui Sai Yu, the Court of Final Appeal held that the approach to construction of the NSL is the common law approach as established in Director of Immigration v Chong Fung Yuen[10]. It was also held that, where convictions resulted, the courts would apply local sentencing laws and principles in tandem with the NSL’s sentencing provisions. Therefore, we agree with the submission of the prosecution that:

(a)  the phrase should be given its ordinary and natural meaning unless its context or purpose points to a different meaning: HKSAR v Cheung Kwun Yin[11]; and HKSAR v Chan Chun Kit[12]; and

(b)  local sentencing laws and principles are relevant and applicable to deciding on whether a case brought under NSL 29 should be classified as of a “grave nature” in order to give effect to the principle of “convergence, compatibility and complementarity”.

35.  There is no dispute between the parties that when determining whether the present NSL offences are of a “grave nature”, this Court is assisted by the judgment of the Court of Appeal in HKSAR v Ma Chun Man[13], which considered whether the offence of incitement to secession in that case was of a “serious nature” for the purpose of NSL 21. After some adaptations for the present case, the relevant factors would include: 

(a)  the context including the society’s atmosphere in which the offence was committed;

(b)  the modus operandi, including the ways, acts, wording, media or platform adopted;

(c)  the frequency, duration and persistency of the offence;

(d)  the scale of the offence;

(e)  whether the offence was premeditated and if so, the scale and precision of the premeditation;

(f)  whether violence or threat of violence was involved and if so, the urgency and seriousness of the relevant violence or threat;

(g)  the number of people involved;

(h)  the target group(s) of the request for sanctions and the potential influence on them;

(i)  whether the offence actually succeeded in resulting in foreign sanctions or the risk and imminence of such sanctions; and

(j)  the actual or potential impact of the offence on the HKSAR and/or the PRC.

36.  Moreover, in HKSAR v Ng Gordon Ching Hang and Others[14] which concerned a conspiracy to commit subversion, this Court, differently constituted, held that the seriousness of the offence would depend on a host of factors including the degree of planning, the ways and means employed, the number and extent of the attacks, the number of people involved, the potential harms, the actual outcomes and consequences of the offence. It was also said that the assessment of sentence had to be holistic, after a careful consideration of all the circumstances.

37.  In view of the above, we are therefore unable to agree with leading counsel for Lai that NSL 29(4) is a lesser form of the offence on the sole basis that it does not contain the following words “seriously undermine the sovereignty … of the People’s Republic of China” (as in NSL 29(1)) or “likely to cause serious consequences” (as in NSL 29(2), (3) and (5)) as an element of the offence. In our judgment, this proposition is not supported by the structure of NSL 29 which in our view ranks all the sub-paragraphs on an equal footing. Moreover, since the sentencing exercise is a holistic one having regard to all the circumstances of the offence, the seriousness or gravity of the offence must necessarily be a case-specific question.

Pre-NSL acts or activities

38.  It needs to be emphasised that the NSL does not have retrospective effect and that the defendants are not to be punished for their pre-NSL acts or activities, nor for their political thoughts. They were convicted because they had agreed to do and intended to carry out what was not permissible under NSL 29.   

39.  That is not to say that what had happened before the enactment of the NSL are irrelevant. This is because the defendants’ pre-NSL acts and activities formed part of the context in which their offences took place. It is well-established that in sentencing, the context of the offence is relevant to the assessment of the gravity of the offence and the culpability of an offender: R v Tse Chung[15]; Divin and McGinlay v HM Advocate[16]; SJ v Poon Yung Wai[17]; HKSAR v Wong Chi Fung[18]; and HKSAR v Tam Tak Chi[19].

The “banding issue”

40.  A legal issue arises in the present case, namely in an offence jointly committed by a number of offenders, whether the role played by a particular offender is a factor relevant only to Step 2 of Lui Sai Yu’s case (the fixing of the starting point within the applicable sentencing band); or whether it is also relevant to Step 1 (the determination of the applicable sentencing band)[20]. This “banding issue” is important because it may bear on the amount of sentencing discount a defendant may receive for his guilty plea when he or she is unable to pray in aid NSL 33. The matter becomes more acute in the case of a conspiracy where different parties might have different degrees of knowledge of the scope of the conspiracy and might have different roles to play in it.     

41.  We note that in NSL 20 and NSL 22, the penalty sections are identical and it is provided that:

“犯前款罪，對首要分子或者罪行重大的，處無期徒刑或者十年以上有期徒刑；對積極參加的，處三年以上十年以下有期徒刑；對其他參加的，處三年以下有期徒刑、拘役或者管制。”

“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.”

Thus, the banding issue depends on: (1) the participatory role of the offender; and (2) the gravity of the offence. On the other hand, in NSL 29, the gravity of the offence is the only criterion for determining the applicable sentencing band.

42.  In this regard, we note that for some other offences created by the NSL including incitement to secession (NSL 21); incitement to subversion (NSL 23); supporting a terrorist organisation (NSL 26); and advocating terrorism (NSL 27), which are similar to NSL 29, the banding issue would depend solely on the seriousness of the offence. For example, in NSL 21 it is said:

“If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances of the offence committed by a person are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.”

43.  The Court of Final Appeal in HKSAR v Lui Sai Yu, ante, has the following to say about the difference between the sentencing scheme of secession (NSL 20) and that of incitement to secession (NSL 21) (footnotes omitted):

“49. These Articles are set out in Section C above. NSL21 refers to NSL20 and both come within NSL Chapter III, Part 1 entitled “Secession”. They are obviously closely-related provisions and must be read together, but they constitute two separate offences involving different prohibited acts. Thus, the offence under NSL20(1) is committed by persons who organise, plan, commit or participate in secessionist acts, while NSL21(1) applies to those who incite, assist in, abet or provide pecuniary or other financial assistance or property for the commission by other persons of the NSL20 offence.

50. For sentencing purposes, NSL20(1) is refined by NSL20(2) which distinguishes between different roles that may be played by an offender in the performance of the prohibited acts, namely, as “principal offender”, “active participant” or “other participant”. NSL20(2) lays down a framework of three bands or tiers of potential sentences of differing severity and assigns one such band to each such class of offender. For a “principal offender or a person who commits an offence of a grave nature” the band of available sentences spans ten years’ to life imprisonment; for an “active participant”, three to ten years’ imprisonment; and for an “other participant”, short-term detention or restriction to three years’ imprisonment. It will be recalled that NSL64 (set out in Section D.2 above), specifies the local law equivalents for these sentencing terms. NSL20(2) specifies that the offender in each category “shall be sentenced” to a penalty within the assigned sentencing band.

51. NSL21, which is our central concern, differs structurally from NSL20. NSL21(1) defines the offence by reference to the specified prohibited acts but, unlike in NSL20(2), there is no further refinement by reference to the offender’s participatory role. NSL21(1) simply provides for liability which is either inchoate (incitement) or secondary (assisting, abetting or financing) by reference to commission of an NSL20 offence by others.

52. However, as with NSL20(2), NSL21(2) provides a sentencing framework, this time specifying two (rather than three) bands of potential sentences. It requires the court to assess the seriousness of the circumstances of the offence in deciding into which band the case falls. If the circumstances are of a “serious nature”, the person “shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years” and if the circumstances “are of a minor nature”, that person shall be “sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction”.

53. It is evident that NSL20 and NSL21 assume and allow for the exercise of a sentencing discretion by the court within the framework provided. Thus, in NSL21(2), the court is required to undertake an evaluative assessment of the seriousness of the circumstances of the offence to decide whether the sentence should fall within the upper or lower band. Furthermore, the fact that these Articles provide for bands of possible penalties means that the court has a discretion to determine at which level within the band the sentence should be imposed. In doing so, as explained in Section D.2 above, the court applies the Region’s sentencing laws and principles, involving consideration of starting-points, aggravating and mitigating factors, and so forth.”

“71. Deciding on “seriousness” involves an evaluative and discretionary judgment by the court. In Ma Chun Man, the Court of Appeal held that in this context “the prime focus is on the offender’s acts, as well as the actual consequences, potential risks and possible influence entailed”. It proceeded to list various potentially relevant factors, including the social context in which the offence was committed; how the incitement was conveyed, on what scale and with what frequency; whether violence or the threat of violence was incited; the persons or groups involved or targeted; what the impact of the incitement was and the scope of its potential influence. We agree that indications such as these are helpful in assessing the seriousness of the offence, recognising of course that the list is not intended to be exhaustive or mechanically applied.”

(Underline supplied)

The case of HKSAR v Ma Chun Man approved in Lui Sai Yu was also about incitement to secession.

44.  Based on HKSAR v Lui Sai Yu and HKSAR v Ma Chun Man, we readily accept that the act(s) of the offender should not be excluded as a relevant factor in the determination of the banding issue. On the other hand, the following points need to be considered:

(a)  both HKSAR v Lui Sai Yu and HKSAR v Ma Chun Man were about a single offence committed by a sole offender. Therefore, neither of the Courts was asked to consider nor did they address the situation of a joint offence where different parties played different roles in the offence; and

(b)  the difference between the penalty sections of NSL 20 and NSL 22 on the one hand and that of NSL 29 on the other could not have been accidental. There must be some significance to the fact that the penalty section of NSL 29 refers only to the gravity of the offence as the criterion for determining the banding issue; otherwise, the Legislature would have easily adopted the same formulation as in NSL 20 and NSL 22.

45.  Bearing in mind the aforesaid legislative intent that a serious view should be taken of cases which involve the engagement of a foreign entity in endangering national security, in our judgment when determining whether an offence is of “a grave nature” for the purpose of NSL 29, although the court should not ignore the act(s) of an offender in a joint offence scenario, the emphasis is on the objective seriousness of the offence as a whole. There can be situations where the offence as a whole is so serious that the small part played by an offender counts very little in the assessment of his culpability, especially when he or she committed the offence with the full knowledge of its scope which went beyond his or her own part.

46.  This interpretation which focuses on the offence as a whole rather than the part played by an offender also fits well with the phrases “犯前款罪” (literally, “commission of the aforesaid offence”) and “罪行重大的” (literally, “for an offence which is grave”) contained in the original Chinese text. On the other hand, we note that the phrase “a person” which appears twice in the English translation of NSL 29 is not present in the original Chinese text. Therefore, the phrase “a person” does not assist in the interpretation of NSL 29.

47.  This interpretation is also consistent with the approach taken by the Court of Appeal in HKSAR v Wong Kin Chung. In that case, in response to the ground of appeal that the trial judge had failed to consider the applicant’s role and his own culpability in a conspiracy to incite the commission by other persons of the offence of secession, the Court of Appeal pointed out that an element of the conspiracy was the defendants’ agreement to commit the crime, not the “overt acts” performed by individual co-conspirators during the conspiracy. The Court of Appeal said that generally speaking, the insignificant role played by individual co-conspirators was not a mitigating factor. However, if a co-conspirator played an active, affirmative and extensive role, his culpability would be aggravated. The court had to take into account the overall gravity of the offence before arriving at the appropriate sentence.

48.  We have not ignored the case authorities on sentencing decided subsequent to HKSAR v Wong Kin Chung:  

(a)  In HKSAR v Lam Tsz Him[21], the Court of Appeal held that a differential sentencing approach may be warranted where the crime is a conspiracy to commit multiple offences, and the defendant is a participant in only one or some of them. In such cases, culpability depends primarily on the defendant’s involvement in the offence or offences that form part of the conspiracy.

(b)  In HKSAR v Leung Wai Kin[22], the sentence appeal was allowed on the basis that there was not a sufficient distinction between the appellant’s culpability as compared with his co-defendants. In particular, the co-defendants had committed a breach of trust whilst the appellant had not.

49.  We have no difficulties with the notion that even in the case of a conspiracy charge, different sentences can be imposed on different co-conspirators on the basis of their different culpability. There is nothing in the judgment of HKSAR v Wong Kin Chung which suggests that the role of the offender should not be taken into account in sentencing. Quite to the contrary, the Court of Appeal said that the fact that the role of the defendant was insignificant was not a mitigating factor, whereas the fact that the defendant played an active, affirmative and extensive role was an aggravating factor. Properly understood, there is no real difference between HKSAR v Wong Kin Chung and the subsequent cases including HKSAR v Lam Tsz Him and HKSAR v Leung Wai Kin.

50.  In the present case, Lai was no doubt the mastermind of all three conspiracies charged and therefore he warrants a heavier sentence. As regards the others, it is difficult to distinguish their relative culpability. As can be seen from the Reasons for Verdict, all of them were knowing parties and their roles were active, affirmative and extensive.     

NSL 33

51.  According to NSL 33, 

“A lighter penalty may be imposed, or the penalty may be reduced or, in the case of a minor offence, exempted, if an offender, criminal suspect, or defendant:

(1) in the process of committing an offence, voluntarily discontinues the commission of the offence or voluntarily and effectively forestalls its consequences;

(2) voluntarily surrenders himself or herself and gives a truthful account of the offence; or

(3) reports on the offence committed by other person, which is verified to be true, or provides material information which assists in solving other criminal case.”

The aforesaid three conditions are exhaustive, as held in Lui Sai Yu, ante. Therefore, in order for the mitigation benefits of NSL 33 to be triggered, at least one of the three conditions specified therein must be present.

Fine

52.  As regards the Corporate Defendants, NSL 31 provides:

“An incorporated or unincorporated body such as a company or an organisation which commits an offence under this Law shall be imposed with a criminal fine.”

53.  It is noted that NSL 31 does not provide for any fixed sum or maximum amount that this Court could impose as a fine on a company for an offence contrary to NSL 29. In this regard, we bear in mind that the NSL functions coherently with the HKSAR’s legal system and seeks “convergence, compatibility and complementarity” with local laws, unless they are expressly or implicitly displaced in the event of inconsistency by the operation of NSL 62. One of the relevant local laws not so displaced by NSL 62 is section 3 of the High Court Ordinance, Cap. 4 which establishes the High Court as a court of unlimited civil and criminal jurisdiction. As such, there is no upper limit to the fine which this Court can impose pursuant to NSL 31.

54.  In determining the appropriate level of fine to be imposed on the Corporate Defendants, this Court would bear in mind the purpose of the NSL which is to prevent, suppress and punish acts or activities that endanger national security: NSL 1, 3 & 8. In our judgment, the appropriate level of fine would depend on a host of factors including the gravity of the offence; the role played by the company under consideration; the harm or potential harm that might have been caused to national security; and the need for general deterrence. The capacity of the company to pay the fine would also be a relevant factor but it is not determinative. In this regard, we agree with the submission of the prosecution that the capacity of the corporate defendant to pay cannot result in the imposition of fines that do not reflect the objective seriousness of the conduct or have the necessary general deterrent effect: Director of Public Prosecutions v LH Holding Management Pty Ltd; Director of Public Prosecutions v Laith Hanna[23].

Count 1

55.  The maximum sentence that could be imposed for a first substantive offence under section 10(1) of the Crimes Ordinance, Cap. 200 is a fine at level 2 (i.e., HK$5,000[24]) and to imprisonment for 2 years. That would also be the maximum sentence that could be imposed for a conspiracy to commit a section 10(1) offence: see section 159C of the Crimes Ordinance.

56.  The Court of Appeal has not laid down any sentencing tariff for this type of offence.

Starting points

57.  We have carefully considered the written submissions and letters put forward by the defendants in mitigation and we do not intend to repeat all of those.

Count 1

58.  In our judgment, in view of the fact that the printed and online platform of Apple Daily had been used for the publication of the impugned articles; the number of articles in question; the number of parties involved in the publication of those articles; and the duration of the offence, the conspiracy in question falls within the most serious category of its type.

59.  For Lai, we adopt 21 months’ imprisonment as the starting point. For each of the Corporate Defendants, all of which we are told have since become insolvent, we adopt a fine of HK$4,500 as the starting point.

Count 2 and Count 3

60.  We have no doubt whatsoever that the two conspiracies which are the subject matters of Count 2 and Count 3 fall within the category of offences of “a grave nature”.

61.  We do not intend to repeat the evidence and findings set out in our Reasons for Verdict. It suffices for us to highlight the following:

(a)  the offences took place at a time when Hong Kong had hardly recovered from the social turmoil caused by the Anti-Extradition Law Amendment Bill Movement (“anti-ELAB”) in 2019 (of which Apple Daily had a significant part to play);

(b)  for Count 2, the conspiracy involved the use of various printed and online platforms so that a vast audience, both local and overseas, could be reached;

(c)  for Count 3, the conspiracy involved the use of online platforms and the activities of parties took place both within and outside of Hong Kong;

(d)  the conspiracies were clearly premeditated;

(e)  the conspiracies were persistent ones, resulting in many acts rather than a single incident. We have found that after the enactment of the NSL, the request for SBHA became more implicit and subtle, but the change was only in form rather than in substance. The defendants continued with their agreement for some time until after they were arrested by the police;

(f)  there were multiple parties to each conspiracy;

(g)  SBHA were in fact taken by foreign countries against the HKSAR as a whole as well as against officials of the governments of the HKSAR and the PRC. Such adverse measures have not been removed even up to today. Although it was not the case that the conspiracies were the only cause of the SBHA, it is wholly unrealistic to say that the defendants’ activities were not a contributing cause.

62.  Having looked at all the circumstances in the round, before the consideration of any aggravating or mitigating factors, we adopt 15 years’ imprisonment as the starting point for each of the two conspiracy charges which are the subject matters of Count 2 and Count 3.

63.  As regards the Corporate Defendants, we are alive to the fact that they are now insolvent. However, as discussed above, despite their incapacity to pay, their penalties have to reflect the objective seriousness of the conduct and to have the necessary general deterrent effect. We are of the view that the appropriate starting point for the Corporate Defendants in respect of Count 2 is a fine of HK$3 million.

Sentences of D1

Aggravating factors

64.  We have found that Lai was the mastermind and the driving force behind these conspiracies. For this reason, we enhance the starting point by the following:-

(a)  2 months’ imprisonment in addition to the 21 months’ starting point of Count 1, making a provisional sentence of 23 months’ imprisonment; and

(b)  3 years’ imprisonment in addition to the 15 years’ starting points of Count 2 and Count 3, making a provisional sentence of 18 years’ imprisonment for each of the charges.

Mitigation

65.  Leading counsel put forward the following in mitigation on Lai’s behalf, namely: (1) old age; (2) poor health and (3) solitary confinement.

66.  As has been mentioned, Lai is now aged 78. We note that advanced age may be taken into account not as a matter of principle, but “as an act of mercy”: HKSAR v Tam Yuen Tong[25]. Furthermore, although an offender’s life expectancy, age, health and prospect of dying in prison were factors legitimately to be taken into account in sentencing, they had to be balanced against the gravity of the offence, and the public interest in seeing adequate punishment for very serious crimes.: R v Clarke: R v Cooper[26].

67.  As regards his health condition, we are told that he has the following conditions:

(a)  in January 2024, Lai was diagnosed to have right eye branch retinal vein occlusion with macular oedema. He has been receiving intravitreal injections since October 2023;

(b)  since June 2024, Lai has elevated blood pressure;

(c)  between June 2024 and May 2025, Lai experienced weight loss;

(d)  in July 2025, Lai experienced heart palpitations. The blood tests indicated that he had deficiency in an enzyme; haemoglobinopathies (a blood disorder) and splenomegaly (enlarged spleen) and first-degree heart block (a benign finding);

(e)  in September 2025, Lai was found to suffer progressive hearing loss; and

(f)  in September 2025, Lai was found to have paronychia (infection and inflammation of the skin around fingernails), onychodystrophy (abnormal change in nail shape, colour or texture) and onycholysis (separation of fingernails from the nail beds).

68.  Upon our request, legal representatives of Lai obtained an updated medical report of Lai dated 9 January 2026 and submitted it to this Court. We do not intend to go into every detail of the medical report. For present purposes, it suffices for us to extract the relevant parts of the medical report as follows:

(a)  Upon admission to the institution under the charge of the Correctional Services Department (“CSD”), Lai continued to take private medication until his medical condition was reviewed by the outreaching medical specialist from the Hospital Authority (“HA”) in December 202l as arranged by the CSD. He was prescribed with hypertension, hyperlipidemia and diabetes mellitus medications from the HA with regular follow-up by the outreaching medical specialist. Blood test was performed by hospital staff on him before each and every visit by the outreaching medical specialist. No abnormality was noted other than Lai’s chronic illnesses that had already been diagnosed before admission to the institution.

(b)  Recent fluctuation of blood pressure was noted and outreaching medical specialist appointment was advanced by the institution’s Medical Officer (“MO”) on 23 December 2025. The consultation by outreaching medical specialist was done on 8 January 2026 and the specialist adjusted antihypertensive medication according to the recent fluctuation of blood pressure. The blood pressure was stable after the treatment by medication.

(c)  Lai complained of toothache in February 2021 and his case was referred to an outreaching dental specialist. His tooth problem was examined and treated by the outreaching dental specialist since April 2021. Lai had made no more complaint regarding the tooth issue after the last dental appointment in August 2022.

(d)  Lai was diagnosed with early cataract and has been followed-up by outreaching eye specialist regularly to closely monitor for any change of condition. During the follow-up appointment in September 2023, he was further diagnosed by the outreaching eye specialist to have right eye branch retinal venous occlusion. His case was referred to Grantham Hospital for treatment. His case has been followed-up regularly at Grantham Hospital and by the outreaching eye specialist to monitor his condition and perform injection of medicine if necessary.

(e)  Lai was assessed by the institution’s MO to have hypertrophic toe nail in June 2024 and he was examined by the outreaching social hygiene specialist in August 2024. No active nail problem was diagnosed and the outreaching social hygiene specialist assessed that no further follow-up was needed. In October 2024, Lai was found by the MO to have onychomycosis in the right thumb and left big toe. His condition was then assessed by outreaching specialist in March 2025 and he was suspected to have nail infection. Lai declined to receive topical treatment and was not keen for further intervention against the problem. Therefore, no further follow-up appointment was arranged. In June 2025, he was found by the MO to have bilateral thumb nail dystrophy. He was then examined by the outreaching specialist in September 2025 and the condition was found to be nail infection. As Lai preferred conservative management, no follow-up appointment was needed. Thereafter, Lai’s nail condition has been closely monitored by the MO. No deterioration of his nail condition was observed.

(f)  Lai complained of back pain and low back pain with multiple episodes from April 2025 to December 2025. His back pain condition was constantly reviewed by the institution’s MO and his pain was relieved by prescription of topical analgesic ointment.

(g)  In July 2025, Lai complained of palpitation and declining hearing power. Preliminary examination by institution’s MO for the above two issues was conducted and no obvious abnormality was found. Lai's outreaching medical appointment was advanced and outreaching Ear, Nose and Throat (“ENT”) specialist was referred.

(h)  In August 2025, the outreaching medical specialist advised the use of cardiac memo device to monitor Lai’s claimed palpitation problem and prescribed medication for relieving palpitation should it occur. Lai had made no more complaint of palpitation since the medical specialist consultation. The cardiac memo device had no record of palpitation and Lai did not consume the medication for relieving palpitation. Nevertheless, Lai’s claimed palpitation condition has been regularly followed-up at outreaching medical clinic.

(i)  Lai was examined by the outreaching ENT specialist in September 2025. A Pure Tone Audiogram (“PTA”) has been arranged by HA to assess his actual hearing ability. He will be arranged to attend the PTA accordingly. After the examination by ENT specialist in September 2025, Lai did not report any deterioration of hearing power.

(j)  The body weight and body mass index (“BMI”) were also reviewed by the institution’s MO on a bi-weekly basis. Upon his admission to Lai Chi Kok Reception Centre (“LCKRC”) on 3 December 2020, Lai’s height was measured to be 1.74 meters and his body weight was 80 kg, and so the BMI was 26.4. The last-measured bodyweight was 79.2 kg in January 2026 and so the BMI was 26.2. Both readings indicated that Lai was at obesity status for an Asian adult.

(k)  As Lai has been removed from association[27], the institution’s MO attends to Lai daily to monitor his health status in accordance with the Prison Rules. During the attendance, the health status of Lai was stable and so he was assessed as fit for removal from association. In addition, according to the available record, no psychological abnormality was reported. Apart from the above-mentioned and minor ailments which were treated accordingly, his general health condition remains stable under the medication treatment and close observation.

69.  Leading counsel acting for Lai did not take issue with the matters referred to above except for Lai’s weight loss. Medical records from the CSD showed that Lai weighed 86 kg on 7 June 2024. There was also a report from a private clinic which showed that on 29 July 2020 (which was prior to his first arrest), he weighed 85.7 kg. In any event, whether Lai has experienced any weight loss is not the point. The point is whether the weight loss, if any, is a matter of concern and whether it indicates any inadequacy of the medical attention and care that Lai has been receiving in prison. Based on the medical report before us, the answers to both of these questions are in the negative.

70.  In any event, for the following reasons we are not inclined to give Lai any deduction for his medical condition. First, we note that the general rule is that medical grounds will seldom, if ever, be a basis for reducing the sentence for crimes of gravity: Yip Kai Foon v HKSAR[28]. In Sentencing in Hong Kong[29], the learned authors have the following to say about using ill-health as a mitigating factor:

“In R v Chan Kui-sheung [1996] 3 HKC 279, 284, Yang CJ, following R v Bernard [1997] 1 Cr App R (S) 135, 138, adopted four principles as being of relevance to the consideration of the ill-health of the accused, namely:

(1) a medical condition which might at some unidentified future date affect either life expectancy or the prison authorities’ ability to treat a prisoner satisfactorily might call into operation the exercise by the executive of the prerogative of mercy but was not a reason for the Court of Appeal to interfere with an otherwise appropriate sentence;

(2) the fact that an offender was HIV positive, or had a reduced life expectancy, was not generally a reason which should affect sentence;

(3) a serious medical condition, even when it was difficult to treat in prison, will not automatically entitle an accused to a lesser sentence than would otherwise be appropriate; and

(4) an accused’s serious medical condition might enable a court, as an act of mercy in the exceptional circumstances of a particular case, rather than by virtue of any general principle, to impose a lesser sentence than would otherwise be appropriate.”

In the present case, however, leading counsel confirmed that none of Lai’s aforesaid conditions is life-threatening.

71.  Secondly, in Attorney General v So Chee Kong, Eddie[30] (approved in HKSAR v Cheung Suet Ting[31]), the court, having been told that if the sentence of the accused was to be extended his mental health would suffer, responded that “it would not, we are satisfied, be proper for us to give weight to possible deterioration in his health. It is a matter for the Prison Authorities to see that he receives proper medical attention”. In the present case, there is nothing to suggest that the medical attention provided to Lai by the Correctional Services Department is or has been inadequate to deal with his conditions. Indeed, in HKSAR v Tam Yuen Tong, the court made the point that “as a matter of reality most prisoners receive medical attention in prison of an equal or better standard than they would otherwise receive.” 

72.  As regards Lai’s solitary confinement, leading counsel said that, since Lai’s incarceration in late 2020, Lai has been put in solitary confinement for security reasons. By now, he has been in solitary confinement for about five years.

73.  Our attention was drawn by the prosecution to R v Yung Man Chuen[32]where the Court of Appeal said that the following factors would be relevant in considering to what extent, if any, a sentence may be reduced on the ground of solitary confinement: namely the nature of the offence; whether the defendant was the author of his own misfortune; and the steps taken by the Correctional Services Department to blunt the rigors involved in segregation.

74.  In order to properly consider the defence assertion about Lai’s confinement, the Court therefore made enquiries with the prosecution. The written reply was as follows (footnotes omitted):

“4. In the case of D1, he was first removed from association following his written request for protection upon the 1^st admission to LCKRC on 3 December 2020 … When making the said written request for protection, D1 stated the reason to be his fear of harassment by other persons in custody in association due to the wide publicity of his case, and he confirmed that his request for protection was made out of his own will.

…

8. As readily appreciated from the above, removal of D1 from association was not simply for “security reason” as asserted by D1 but also upon his own request for protection.

9. Indeed, D1 submitted repeated written requests for protection on each occasion of admission to custody and transfer from one institution to another, with the same stated reason of being fear of harassment by other persons in custody in association due to the wide publicity of his case. On each and every occasion of the making of such request, he confirmed that the request was made out of his own will.

10. In addition, prior to the making of each removal order, D1 was given an opportunity to make representations for consideration of the Board of Review, and D1 has never submitted any representations regarding each further removal order, never raised any complaint, and never requested that protection through removal from association should cease.

11. Despite his removal from association, D1 has been given all his entitlements as a person in custody in accordance with the applicable laws. Particularly, he has all along been able to maintain social contact and interaction conducive to his wellbeing and rehabilitation, including general visits from family members and others, mail correspondence, religious services arrangement (including administration of the Holy Communion), welfare and counselling services provided by institutional Rehabilitation Officers on a daily basis (such as receipt of publications and leisure items), outdoor exercise, meaningful but light duty work and so forth. Further, medical specialists from the Hospital Authority and the Department of Health will visit correctional institutions on a regular basis to provide persons in custody with specialist consultation and treatment, including dental treatment. If necessary, they will be referred to specialist medical staff or to public hospitals for follow-up if further examination and treatment are required. It is noteworthy that D1 has not made any complaint about the medical services he is receiving.” [33]

75.  The above reply by the prosecution is supported by a seven-page statement given by the Chief Superintendent of LCKRC which outlined the arrangement and facilities provided to Lai. The Chief Superintendent summarised the matters about the arrangement of Lai’s custody as follows:

“(1) LAI has been removed from association upon receipt of his own requests for protection and having assessed all relevant considerations, and the procedural safeguards under rule 68B of the Prison Rules have been strictly adhered to. His entitlements as a PIC[34] have not been deprived of on account of his personal status or by the mere fact of his removal from association.

(2) Despite removal from association, LAI has been able to maintain social contact and interaction conducive to his wellbeing and rehabilitation through various means, including general visits from family members and others, mail correspondence, religious services including administration of the Holy Communion, welfare and counselling services provided daily by Rehabilitation Officers, and receipt of publications and leisure items.

(3) LAI has participated in exercise in an outdoor environment (if weather permits) daily, and has been assigned meaningful though very light duty work.

(4) CSD has ample experience and all necessary facilities to cope with the needs of elderly PICs and PICs with medical needs in the custodial setting. And there has been no complaint from LAI regarding the medical services he is receiving.

(5) External and internal mechanisms are in place to ensure the rights of PICs are protected. LAI has never lodged any complaint in relation to the custodial treatments in LCKRC at all.”

None of the above are gainsaid by Lai’s legal representatives.

76.  Leading counsel for Lai urges us to consider the combined effect of Lai’s age, health condition and solitary confinement which he submits would make Lai’s prison life more burdensome than that of other inmates: R v Bailey[35]. Our attention is also drawn to R v Heung Chi Keung[36] which was about the sentence appeal of a former prison officer. In that case the Court of Appeal said that the fact that the applicant would be subjected to particular hardship by being confined in prison must be borne in mind as part of the overall background when sentencing, although it would be difficult to give this matter weight in terms of months or years and the importance of it would vary in each case.

77.  Having considered all the circumstances, we accept that the combination of Lai’s old age, health condition and solitary confinement would cause his prison life to be more burdensome than that of other inmates. As such, we deduct:

(a)  one month from the sentence of Count 1; and

(b)  one year from each of the sentences of Count 2 and Count 3.

Totality

78.  Therefore, before the consideration of totality, Lai’s sentences are as follows:

Count 1: 22 months’ imprisonment

Count 2: 17 years’ imprisonment

Count 3: 17 years’ imprisonment

79.  Having stepped back and taking a global view of the total sentence for Lai’s serious and grave criminal conduct, applying the totality principle we are satisfied that the total sentence for Lai in the present case should be 20 years’ imprisonment. In order to achieve this result, we order that:

(a)  1 year of the sentence of Count 1 is to be served consecutively to the sentence of Count 3;

(b)  2 years of the sentence of Count 2 is to be served consecutively to the sentence of Count 3; and

(c)  the remaining terms in Counts 1, 2 and 3 are to be served concurrently to each other,

thus making a total imprisonment term of 20 years.

80.  As mentioned above, Lai is currently serving an imprisonment term of 5 years and 9 months for DCCC 349/2021, the earliest date of release is in June 2026 (assuming a one-third remission) or May 2028 (assuming that there is no remission). In HKSAR v Lee Ming Yin[37], the Court of Appeal said:

“5. The principle is long settled that a sentencing judge, when dealing with an offender who has been sentenced to imprisonment by another court for another offence, must have regard to the totality of all the terms of imprisonment to which the offender will become subject: see, for example, R v Ng Chun Keung [1993] 2 HKC 171 at 173.

6. In R v Tong Hoi Fung [1998] 1 HKLR 601, this Court said that, in determining an appropriate sentence in light of the totality principle, the matter should be approached as if the two cases were being heard together.”

See also HKSAR v Leung Ting Fung & Anor[38].

81.  We bear in mind that the sentence of imprisonment Lai is presently serving is for an offence of a totally different nature and the facts of which were also unrelated to the present case. Applying the totality principle, we further direct that 18 years of the present term should be served consecutively to Lai’s sentence in DCCC 349/2021.

Sentences of the Corporate Defendants

82.  As noted in our Reasons for Verdict, the conspiracies in Count 1 and Count 2 could not have been carried out without the full co-operation of the Corporate Defendants. We are unable to see any cogent mitigation factors which may reduce the penalties of the Corporate Defendants.  

83.  Therefore, each of the Corporate Defendants is fined as follows:

(a)  Count 1: HK$4,500

(b)  Count 2: HK$3 million

thus making a total fine of HK$3,004,500.

Sentences of the accomplice witnesses

84.  As aforesaid, each of Cheung, Chan, Yeung, Wayland and Andy pleaded guilty timely and they gave evidence for the prosecution in HCCC 51/2022.

85.  We have already summarised their evidence in our Reasons for Verdict and we are not going to repeat it. It suffices for us to say they were found to be truthful witnesses and their evidence significantly contributed to the convictions of Lai and the Corporate Defendants in HCCC 51/2022. We are satisfied that NSL 33(3) is engaged in respect of all the aforesaid accomplice witnesses, so that a lighter and reduced penalty than the starting point may be imposed. We also bear in mind the judgment of the Court of Final Appeal in Z v HKSAR[39] when considering the amount of discount for their timely plea and assistance to the prosecution.

86.  However, it is submitted on behalf of Cheung and Wayland that they should be put in the “supergrass” category for sentencing purpose so that they may benefit from a discount of as much as two-thirds.  

87.  Having considered the materials before us, we do not agree that any of the accomplice witnesses falls within the “supergrass” category. In HKSAR v Khan Sadam Biland[40], Macrae VP (who gave the judgment of the Court of Appeal) said (footnotes omitted):

“28. It is extremely rare and exceptional in the annals of criminal sentencing for a defendant to be given a two-thirds discount from what a sentence should otherwise be. Courts should therefore be vigilant not to denude or demean the notion of a ‘supergrass’, which is the ultimate form of assistance and cooperation in multiple and very serious crimes, usually encompassing an inevitable and justifiable fear for the safety and security of the defendant or his family members. Yet even where a defendant may properly be classified as a ‘supergrass’, the Court in Z v HKSAR spoke in terms of sentence of a ‘a maximum discount of two-thirds’. …

…

30. … In reality, there are those defendants who cooperate and give valuable evidence against their accomplices in the case, and who generally receive in the region of a 50% reduction from their notional sentences after trial; and those who properly fall into the exceptional category of a ‘supergrass’, who normally give highly material and significant assistance in the investigation and prosecution of multiple and very serious crimes, usually at significant risk to themselves or their families, and who will warrant a discount of up to two-thirds.”

In the present case, the materials before us are insufficient to suggest that any of the accomplice witnesses was facing “an inevitable and justifiable fear for the safety and security of themselves or their family members.”

88.  As we have said, we have carefully and fully considered the personal circumstances of each of the accomplice witnesses as outlined in their written mitigation submission and mitigation letters.

89.  For Wayland, his evidence was, in our assessment, crucial for the successful conviction of Lai on Count 3. Without his evidence, the prosecution would not have known the important evidence about the Taiwan meeting. Besides, there would not be sufficient evidence to link up Lai with Andy and Finn Lau. We note also that Wayland was born and educated in the UK and he may have concerns about returning there, especially when some co-conspirators are still at large there. For all his mitigating factors, we give him a total discount of 8 years and 9 months.  

90.  For Cheung, we are told and we accept that in 2020 he made a one-off donation of about HK$5 million to Apple Daily Charitable Foundation. After that, he was regularly and voluntarily involved in helping with the work of that and other charities and made other donations of HK$1.8 to HK$1.9 million in total. We consider that the aforesaid is evidence of Cheung having a positive good character. For his timely plea, assistance to the prosecution and positive good character, we gave him a total discount of 8 years and 3 months.

91.  Chan had for a period of time acted as a director of Apple Daily Charitable Foundation and after that she continued to assist its work in the course of her work in Apple Daily. We take this as a demonstration of her positive character but we note that her contribution to the charity was not as great and persistent as that of Cheung. For her timely plea, assistance to the prosecution and positive good character, we grant her a total discount of 8 years.

92.  For Andy, we are told and we accept that he was in full co-operation with the law enforcement authorities since his return to Hong Kong on 22 March 2021. That was even before Wayland’s first indication to assist the prosecution. Andy’s testimony spanned a total of 15 days. He gave detailed and important evidence of the work and activities of “Stand with Hong Kong Fight for Freedom” (“SWHK”) and the Inter-Parliamentary Alliance on China (“IPAC”) as an insider. For his timely plea and his assistance to the prosecution, we grant him a total discount of 7 years and 9 months. In arriving at this discount, we have not forgotten the time Andy spent in custody on the Mainland. However, after due consideration we are not inclined to make any deduction.   

93.  For Yeung, for his timely plea and assistance to the prosecution, we grant him a discount of 7 years and 6 months. We are not without sympathy to his wife who, after Yeung’s arrest in June 2021, suffered a brain haemorrhage in August 2022, leaving her permanently disabled. We are further told that Yeung’s son, a young man who should be building his own career and future, was forced to quit his job and turned to be a full-time carer to his mother given there were only the two of them left in the family. Purely on humanitarian grounds, we grant Yeung an additional 3 months deduction for his family hardship: Attorney General v Ling Kar Fai (No 2)[41] and HKSAR v S M Kawsar Ahammed[42]. Thus, the total discount granted to Yeung is 7 years and 9 months.

94.  Therefore, the sentence of the accomplice witnesses are as follows:

Cheung: 6 years and 9 months’ imprisonment

Chan: 7 years’ imprisonment

Yeung: 7 years and 3 months’ imprisonment

Wayland: 6 years and 3 months’ imprisonment

Andy: 7 years and 3 months’ imprisonment

Sentences of Law, Lam and Fung

95.  They did not assist the authorities nor did they give evidence for the prosecution and therefore cannot avail themselves of NSL 33. After the customary one-third discount for their timely plea, their sentences are respectively reduced to 10 years’ imprisonment which is the statutory minimum.

96.  Despite Law’s voluntary service for Apple Daily Charitable Foundation as a director, no additional discount can be given to him for this mitigating factor as this does not fall within the parameters of the NSL 33.

97.  Therefore, Law, Lam and Fung are each sentenced to 10 years’ imprisonment.

Conclusion

98.  In HCCC 147/2021:

(a)  Wayland is sentenced to 6 years and 3 months’ imprisonment; and

(b)  Andy is sentenced to 7 years and 3 months’ imprisonment.

99.  In HCCC 51/2022:

(a)  Lai is sentenced to a total imprisonment term of 20 years, 18 years are to be served consecutively to his sentence for DCCC 349/2021;

(b)  Apple Daily Limited is fined HK$3,004,500;

(c)  Apple Daily Printing Limited is fined HK$3,004,500; and

(d)  AD Internet Limited is fined HK$3,004,500.

100.  In HCCC 52/2022:

(a)  Cheung is sentenced to 6 years and 9 months’ imprisonment;

(b)  Chan is sentenced to 7 years’ imprisonment;

(c)  Yeung is sentenced to 7 years and 3 months’ imprisonment; and

(d)  Law, Lam and Fung are each sentenced to 10 years’ imprisonment.