HKSAR v. LUI SAI YU

DCCC 401/2021

[2022] HKDC 384

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 401 OF 2021

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REASONS FOR SENTENCE

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1.  The defendant pleaded guilty to Charge 3, Incitement to Secession, contrary to Articles 20 and 21 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”).

2.  The particulars are that the defendant between 30 June 2020 and 24 September 2020, both dates inclusive, in Hong Kong, together with other persons, incited other persons to organise, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification, namely separating the Hong Kong Special Administrative Region from the People’s Republic of China or altering by unlawful means the legal status of the Hong Kong Special Administrative Region, (“HKSAR”).

3.  He pleaded not guilty to Charges 1 and 2, Possession of arms without a licence and Possession of offensive weapons with intent respectively. Pursuant to an agreement between the parties, both Charges 1 and 2 were put on the court file; they are not to be dealt with unless there is leave from this Court or the Court of Appeal.

4.  The defendant admitted the Amended Summary of Facts. He was arrested at home on 24 September 2020. In his home the police found a pepper ball gun, some air guns, an extendable baton, knives and a large amount of paraphernalia such as body gear often seen worn by protesters during the social turmoil and unrest of 2019. Many of these items were the arms and weapons particularised in Charges 1 and 2. There is a photograph album of the premises and items found, Annex A.

5.  Upon arrest and caution, the defendant remained silent but subsequently in the 2^nd to 5^th video recorded interview he made statements under caution. He admitted in his 3^rd video recorded interview that he and another male surnamed Tsui were the administrators of a Telegram application or app channel which in English translated as a “Channel of Anti-Communism and Hong Kong Independence”, “H.K.I.A.F”. He gave the Police the password for his mobile phone for examination.

6.  The defendant agreed in the Amended Summary of Facts that this channel was established on 14 December 2019 and called “Orange Gear”, the literal translation of its title. The police were able to retrieve records of posts in the channel from 31 January 2020. The defendant was referred to as “equipment for defense” whilst the other administrator Tsui was referred to as “equipment for attack”.

7.  Initially, the identity of the administrator making a post was concealed but after 26 April 2020 and a change of setting, viewers could see which administrator made which post. Both defendant and Tsui as administrators adopted different displayed names at different times.

8.  It was in this Telegram channel that the prosecution says the defendant incited secession. The Amended Summary of Facts refer to posts in the channel which were of a nature designed to incite violence and counsel disobedience to the law by, for example, providing equipment and discussing tactics with protesters to use against the Police.

9.  There were messages of a seditious nature; for example, messages containing the expression “Liberate Hong Kong, Revolution of our times”, “Hong Kong independence, the only way out” and “Fight against totalitarianism”. This must be taken in the context of the tumultuous, violent and social unrest experienced and seen in Hong Kong since June 2019.

10.  Annex B of the Amended Summary of Facts are all available records of the posts found in the channel between 31 January and 23 September 2020 preserved by the Police, making clear which administrator made which post on what day and at what time. Annex C is an English translation of Annex B. Annex B and C form part of the Amended Summary of Facts and examples of the posts are set out in the Facts to give context and a background to the channel.

11.  The prosecution has set out the contents of the posts from before 30 June 2020, that is, prior to the NSL coming into effect. Those posts prior to the promulgation of the NSL are set out in section C, paragraphs 8 to 15 of the Amended Summary of Facts. These posts are only relevant to give context with background history to the channel.

12.  After the promulgation of the NSL on 30 June 2020, there were messages in the channel containing repeat references to advocating independence of Hong Kong, revolution and the such like. It is agreed by the defendant that between 30 June 2020 and 23 September 2020, the day before the defendant was arrested there were a total of 357 posts in this channel.

13.  It was also agreed that on 3 August 2020 the channel was renamed to “2 youths who are anti-communism and anti-National Security, and are determined to shout Hong Kong independence and Taiwan independence”, this is a translation for reference. The channel was renamed again on 28 August 2020 to its last title “H.K.I.A.F”.

14.  In section D of the Amended Summary of Facts at paragraphs 16-22 the prosecution has set out examples of the posts to demonstrate incitement to secession after 30 June 2020 and the promulgation of the NSL. These include posts which were anti-government and showed hostility to the People’s Republic of China; posts the prosecution say amounted to incitement to secession. I don’t intend to repeat all the posts but the defendant has agreed the posts including the date and time they were posted and who posted them.

15.  There were many posts offering for sale items such as extendable batons, respirators and body gear. There were photographs of gas masks, pepper ball guns, bullet-proof vests as well as shields specifically to protect against rubber bullets, beanbag rounds and tear gas rounds. There were photographs offering for sale riot helmets and bullet resistant helmets as well as bullet resistant goggles. There were prices for the items which were sometimes cheaper if the buyer held a student card.

16.  Other than posts relating to items for sale there were many posts relating to Hong Kong independence, a war against the People’s Republic of China, anti-Communism, a violent faction that is anti-Communism, Hong Kong being a country and an appeal to participants to train themselves up to fight for this country. The administrators appealed to others to equip themselves with weapons for close quarter combat.

17.  The defendant agrees that the content of this Telegram channel administered by himself and another incited other persons with a view to committing secession or undermining national unification, namely separating the HKSAR from the People’s Republic of China or altering by unlawful means the legal status of the HKSAR.

Mitigation

18.  The defendant is now 25 years old, single and a first-year student reading civil engineering at the Hong Kong Polytechnic University. He is a man with a clear record. At the time of his arrest he was living with his mother.

19.  I have heard full mitigation and Mr Edwin Choy SC leading Mr Kevin Tang has said all he can say on the defendant’s behalf. He has pleaded guilty at the earliest opportunity and admits that as one of the administrators of a Telegram channel he created and supported posts carrying incitements to secede Hong Kong.

20.  I have been told that the defendant was born and raised in Hong Kong. His father sadly died when he was only 15 years old. This had a significant detrimental impact on the defendant and his family. His mother had to take on the full responsibility of supporting the defendant and his sister both emotionally and financially.

21.  In mitigation, I have received letters from his mother, a family friend, a volunteer who has regularly visited the defendant since his remand, his principal, vice principals and supervisor from school. I have had a letter from the defendant accepting responsibility and explaining why he committed the offence.

22.  Those from his school explain he was a good student who actively participated in school life, voluntary work and extra-curricular activities. He was a squadron leader of the Air Cadets as well as vice president of the Student Association. I have had sight of his school records, certificates as well as photographs of those many activities and extracurricular activities.

23.  I have a psychologist’s assessment report dated 2015 after a diagnosis of Attention Deficit Hyperactivity Disorder, (“ADHD”). I have letters from the psychiatrist who has been treating him since 2016. The most recent letter from the defendant’s psychiatrist confirms the diagnosis and treatment with medication. He last saw the defendant on 12 March 2019.

24.  Mr Choy has stressed that this ADHD diagnosis affected his results in his DSE examinations. However, the defendant did not give up, he motivated himself to study in his own time to repeat those examinations as well as at the same time work to alleviate his mother’s financial burden. He was successful in his retakes and in 2020 was admitted to the Hong Kong Polytechnic University.

25.  The letters portray the defendant as a filial son and a kindhearted young man who helped others and was determined to help himself despite his own difficulties. The letters and mitigation stress that as a young man he was deeply affected by the social unrest in 2019 and concerned about the future of the society in Hong Kong.

26.  There is no denying the commission of the offence but it is stressed that he now realises his wrong doings and wants only to better himself to contribute fruitfully to society once he has served his punishment.

27.  In respect of this Article 21 offence, Mr Choy submits I can treat the circumstances of this offence as belonging to the category of “a minor nature” and not of “a serious nature” which would under Article 21 attract a fixed term imprisonment of not more than 5 years, short-term detention or restriction.

28.  To support the submission, it is stressed that the circulation of this channel was likely to be have been limited and not the same as appearing on television or publishing similar incitements in newspapers which reach large audiences.

29.  Mr Choy also makes the point that those that logged into this Telegram channel were others who already shared similar thoughts and sentiments to the administrators. They would not be those that would be influenced by its contents to commit acts of secession.

30.  Lastly, the defendant lacked celebrity status, was not a well-known figure or public leader and as a result, his messages would not have had much of an impact.

31.  It is submitted I not only consider what is said in the posts which if viewed alone are serious but in a wider context of what he said, where it was said and who would have sought him out to listen.

Reasons for Sentence

32.  Article 21 of the NSL sets up a tiered system for sentencing offenders of incitement to secession. Its English translation reads as follows;

“… 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 5 years but not more than 10 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 5 years, short-term detention or restriction.”

33.  I must make a finding on the facts, submissions and the circumstances of this offence of incitement to secession as to whether the circumstances committed by the defendant are of a “serious nature” or of a “minor nature”.

34.  I have taken into account the circumstances in which the defendant admits he has committed the offence of incitement to secession. I have taken into account the channel on the Telegram app. It is significant that it was open to all to follow; there were no restrictions on those that sought to view the posts. He had, along with another administrator, pushed and advocated for the independence of Hong Kong and a revolution. He advocated violence in many ways including, selling weapons and protective gear; weapons to attack and items for defence. He targeted the sovereignty over Hong Kong by the Central People’s Government.

35.  The Telegram app is a cross platform messaging app. It delivers messages faster than any other app and supports large group chat features. A person can create a channel with unlimited subscribers. Channels are a tool for broadcasting public messages to large audiences. In fact, channels can have an unlimited number of subscribers. There are public and private channels.

36.  The defendant here operated a public channel as one of 2 administrators. They intended for anyone to view the contents and posts of their public channel. Users can view posts in public channels without joining it by searching for and accessing the channel with the name, link and/or the ID of the channel.

37.  Therefore, with respect, the submission by the defence that the defendant did not reach a wide audience and only just a select like-minded group of people who echoed each other carries little weight. After all, the gravamen of this offence is the incitor seeking to influence another to commit an offence. By choosing the forum of an open Telegram channel, the defendant and the other administrator intended to reach out to as many as possible; they were not selective. Messages published openly on the Internet can go viral.

38.  The content of this open public channel, in my view, is of a serious nature. A reading of the posts from 30 June 2020 leave no doubt that the defendant condoned, promoted, advocated and incited others to commit secession or undermine national unification.

39.  Moreover, amongst the rhetoric, the administrators of this Telegram channel were offering for sale weapons or items they described as either for attacking others or defending oneself. I find this relevant and an aggravating factor. For example, on 3 August 2020 a post from Tsui declared that they would continue to serve the users of the channel and search for “a wide spectrum of gear” during a post which contained content amounting to incitement to secession, see Annex B/C, S/N1315.

40.  In another post on 23 July 2020 the channel promoted the sale of bottles of hand sanitiser but also provided a means for participants to donate to the administrators. The post declared all revenue raised would be used “in fighting for Hong Kong independence by this channel”.

41.  In addition, the context in which a crime is committed is of relevance in assessing its gravity and seriousness. This also relates to the culpability of the defendant. As I have said above, this offence was committed during a time when there was social unrest and heightened anti-government sentiment. In this context and in such a social climate the offence aggravated the risks of public and social disorder.

42.  Having taken into account all of the above, I find that the circumstances of the offence of incitement to secession committed by the defendant are of a “serious nature” under Article 21 of the NSL. Therefore, this warrants a sentence of imprisonment of not less than 5 years but not more than 10 years.

43.  I do bear in mind that the defendant committed the offence with one other and despite the calls to arms and violence, there was no elaborate concrete plan being conveyed or pushed at the same time. As Mr Choy suggests there may have been an element upon reading the posts of one-upmanship on the rhetoric between the idealistic participants in the channel. An element of wanting to say something more radical than the person before or a post copied from another similar channel. Even if there is some truth in this observation, this does not detract from the seriousness of the offence.

44.  As far as sentencing is concerned where there is an offender of incitement, the court must consider the underlying offence of incitement and the defendant’s culpability. Here, I have determined the circumstances of the offence to be of a serious nature. It follows I find his culpability high which warrants a deterrent sentence.

45.  Sentencing this offence must reflect a deterrent element and I quote from HKSAR v Tong Ying Kit (2021) HKCFI 2239 at paragraph 15,

“ … the punishment must have as its aim a general deterrent effect on the community as a whole, as well as a specific deterrent effect on the individual in question.”

46.  It also follows that the nature of this offence and seriousness of the facts means personal circumstances, mitigation put forward and previous good character carries little weight.

47.  I did at this stage of my reasons for sentence inform the defendant that I found a starting point of 5 years and 6 months’ imprisonment appropriate to reflect the circumstances of the offence. I reduced that starting point by one-third to reflect his plea at the earliest opportunity.

Further Reasons for Sentence After a Short Adjournment

48.  However, before I became functus officio of this matter the prosecution immediately raised with me their submission that a plain reading of Article 21 must be that if I find the circumstances of the offence of a serious nature then the minimum term of imprisonment is not less than 5 years but not more than 10 years.

49.  I was referred to R v Andrew James Jordan and others, [2005] 2 Cr. App R (S) 44 by Mr. Cheung for the Prosecution. This authority related to a minimum sentence required to be imposed for possession of firearms. I have considered that authority; there is a difference in that that offence gives the Court an option to depart from a required minimum sentence if there are exceptional circumstances. Here in Article 21 of the NSL there is no exceptional circumstances. The Court of Appeal found that the sentencing court may not impose a sentence less than the required minimum to reflect the fact that the offender has pleaded guilty.

50.  Mr Choy agrees that on a plain reading of Article 21 the prosecution appears to be correct but does urge me to reconsider my finding that the circumstances of the offence are of a serious nature.

51.  I thank both the prosecution and defence for their views and submissions. I did find the circumstances of the offence to be of a serious nature and I explained why. I agree with the prosecution that on a plain reading I must according to Article 21 impose a minimum sentence of 5 years’ imprisonment.

52.  I see no reason to now revisit my finding on the nature of the circumstances of the offence and decide it is of a minor nature because the circumstances have not changed.

53.  I repeat, on the facts I found the circumstances of the offence committed by the defendant to be of a serious nature. I stand corrected and agree that Article 21 does impose a minimum term of imprisonment depending on the finding of the court.

54.  I am bound by this plain reading of Article 21. After considering the circumstances of the case, the facts and taking into account mitigation I have heard, I will impose a term of imprisonment of 5 years for charge 3.