HKSAR v. BEST PENCIL (HONG KONG) LIMITED AND OTHERS

[English Translation – 英譯本]

DCCC 265/2022

[2024] HKDC 1609

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 265 OF 2022

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REASONS FOR SENTENCE

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1.  The three defendants in this case were jointly charged with one count of conspiracy to publish and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap 200, Laws of Hong Kong. D1 was absent from the hearing. I allowed the prosecution’s application for proceeding with D1’s trial in the absence of D1 and entering a plea of not guilty for D1. D2 and D3 also pleaded not guilty. After trial, I found the three defendants guilty as charged.

2.  All three defendants have no previous criminal conviction record.

Background of the three defendants and family circumstances of D2 and D3

3.  D1 was a limited company set up in Hong Kong on 16 December 2014. It was also the registered proprietor, printer and publisher of Stand News, an online media, under the Registration of Local Newspapers Ordinance. D1’s first directors included Tsoi Tung-ho (Tsoi), Yu Ka-fai (Yu)  and D2. They founded Stand News. On 19 January 2015, D1 appointed five persons as its directors. The purpose was to monitor the operation of Stand News to see if it was in accordance with its Launch Statement. One of these five directors resigned on 11 June 2021, the remaining four and Yu resigned on 27 June 2021, and D2 resigned on 1 December 2021. After the resignation of D2, Tsoi became the sole director of D1.

4.  With regard to the company structure, the sole shareholder of D1 was an overseas company called Web Network Limited (Web Network). Web Network held one share with a par value of HK$1.00 issued by D1. Web Network was an overseas company incorporated in the British Virgin Islands on 21 November 2014. On 8 December 2014, Tsoi became the sole director and shareholder of Web Network and held one share of Web Network with a par value of US$1.00. On the same day (ie 8 December 2014), Tsoi also became the sole director and shareholder of Indepth Global Limited (Indepth Global), another company incorporated in the British Virgin Islands, holding one share of Indepth Global with a par value of US$1.00. On 19 January 2015, Tsoi appointed Yu and D2 as the directors of Web Network and Indepth Global (ie each company had three directors including him), and transferred one share of Web Network held by him to Indepth Global, and the one share of Indepth Global held by him to Yu, D2 and himself for it to be jointly owned by them (ie each of them holding one-third of a share). In other words, from 19 January 2015 onward, Indepth Global was the only shareholder of Web Network, and Indepth Global had three shareholders including Tsoi, Yu and D2: see Exhibit PE5(2)  to (5).

5.  I accept D2’s evidence that on the same day, ie 19 January 2015, Tsoi, Yu and D2 signed a written declaration of trust dated 19 January 2015, declaring that they held that single Indepth Global share jointly owned by them as trustees. However, D2 did not disclose the identities of the beneficiaries of the trust. D2 testified that the purpose of this trust arrangement was to prevent Stand News from being forced to cease operation, and to avoid the recurrence of the “abnormal death” of House News. I did not accept the evidence of D2. I held that the sudden closure of House News was a business decision made by Tsoi, and that the purpose of the trust arrangement was to obtain startup capital for Stand News from the donors or funders, and to conceal the identities of the donors or funders. When D2 was cross-examined by the prosecution, he concealed from the court the identities of the beneficiaries of the trust. I have also held that Tsoi, Yu and D2 essentially ran Stand News for the beneficiaries of the trust (ie the funders)  who did not wish to be identified: see paragraphs 398 to 440 of the Reasons for Verdict.

6.  D2 was born on 15 September 1969 in Hong Kong and has just turned 55 years old. His father has passed away and his mother is around 80 or 81 years old. He has three younger brothers. D2 is married and his wife is currently on remand due to another case. They have no children. D2 shoulders the responsibility for supporting his mother.

7.  D2 graduated from the Department of Government and Public Administration of the Chinese University of Hong Kong in 1991. After graduation, he worked as an executive member in the Hong Kong Confederation of Trade Unions, fighting for labour rights. Since 1995, D2 had been working in the media industry. Between 1995 and 2011, in terms of timing, he alternated between working at Ming Pao for three terms and at Economic Times for two terms. When he left Ming Pao in late 2011, his position was a reporting officer of the finance section. Then in 2012, D2 joined one of the online media “House News” as the Chief Editor. However, Tsoi, the proprietor of House News closed down House News suddenly in July 2014. From December 2014 onward, D2 was employed by D1 as the Chief Editor of Stand News. He resigned at the end of October 2021 and claimed to be unemployed after resignation.

8.  D3 was born on 2 October 1987 in Hong Kong. He is 36 years old and has been educated up to university level in Hong Kong. D3 had also worked at House News. He was employed by D1 as a reporter of Stand News from December 2014 onward and was promoted to Deputy Editor on 1 December 2019. After the resignation of D2, D3 was promoted to Acting Chief Editor of Stand News and took over the duties of D2 until he was arrested on 29 December 2021 in connection with this case.

9.  D3 is married. He and his wife have a daughter who is of tender age. Currently, he and his wife work respectively as freelancers, earning a small remuneration.

Submissions for mitigation

10.  Since D1 is absent, needless to say, there is no submission for mitigation from it.

11.  On the day of verdict, Ms Eu SC made oral submissions on behalf of D2 and D3 for mitigation and submitted the letters they personally wrote to the court. On 16 September 2024, further written submissions for mitigation were filed on their behalf. Today Ms Eu SC has also made supplementary submission verbally.

12.  Ms Eu SC asserted that having regard to the time D2 and D3 had already been remanded in this case and the mitigating factors put forward by the defence, the proper sentence was to sentence each defendant to a term that would allow for their immediate release.

13.  According to the facts not in dispute, D2 and D3 were arrested on 29 December 2021 and refused bail pending trial afterwards. During the trial period, D3 applied for bail on 7 November 2022, which was allowed. On that day, D2 did not ask for bail. Subsequently, on 13 December 2022, D2 also applied for bail, which was also allowed. According to the computation of the defence, D2 had been remanded in custody for 349 days (ie 11 months and 14 days)  and D3 for 313 days (ie 10 months and 9 days)  due to this case. Ms Eu SC pointed out that a prisoner could generally have a one-third remission of sentence for having been of good behaviour in prison, which meant that D2 and D3 had already served the time equivalent to prison sentences of more than 16 months and 15 months respectively. Yet the maximum sentence for the offence was only 2 years’ imprisonment. Ms Eu SC also reminded this Court that under rule 69(1)  of the Prisons Rules, Cap 234A, if the sentences to be imposed would exceed the respective time for which D2 and D3 had been remanded in custody, be it only by 1 day, they would still have to return to the prison to serve the actual sentence for at least 31 days before they could have the remission of one-third for good conduct.

14.  Ms Eu SC put forward three reasons to ask for D2 and D3 to be sentenced for a period not exceeding the length of their remand period so that they could be released immediately. Two of the reasons were applicable to both defendants, and the remaining reason related to D3’s health, and was therefore only applicable to D3.

15.  The first ground put forward by Ms Eu SC involved the culpability of both D2 and D3. She emphasised that this case was different from other sedition cases because D2 and D3 were journalists, unlike the offenders in other cases. Whilst the offenders in other cases stated their personal political stances and views by releasing emotions in their speeches or publications to generate publicity, D2 and D3 only provided news coverage. Ms Eu SC submitted that D2 and D3, as journalists, were responsible for reporting the state of society, what happened in society and the views of different public figures. They would also publish commentaries contributed by different writers. Coverage of these was not only the responsibility of the journalists but also what our society needed. Ms Eu SC stated that providing news coverage was not political propaganda. D2 and D3 not only reported one single opinion, but also published a wide range of views, both official and unofficial, and reported news (including court news)  in a faithful as well as unbiased manner. Therefore they should be sentenced in a way different from those in the previous sedition cases.

16.  Ms Eu SC pointed out that Stand News was founded in 2014, and by the time of the offence in 2021, Stand News had published over 100,000 articles. Only 17 articles were involved in this case, and the court only ruled 11 of them to be seditious publications, and most of them had already been taken down 6 months before the arrest of the two defendants, leaving only four articles (A1, A14, A15 and A16)  which had yet to be removed. This showed that D2 and D3 had no intention to challenge the law but rather wished to avoid crossing the red line in discharging their duties as a media outlet.

17.  Moreover, Ms Eu SC pointed out that the 11 articles found to be seditious did not involve the Editor’s Words or the views of Stand News itself, and they were all views of the interviewees and the contributors. In other words, instead of publicising their own views in an attempt to incite others, the defendants only published a minimal number of seditious articles in the course of discharging their journalistic duty of news coverage. Ms Eu SC emphasised that even if the court thought that Stand News had supported and promoted localism (G6 in the Reasons for Verdict), none of the 11 articles found to be seditious actually publicised the stance of Stand News.

18.  Ms Eu SC also emphasised that the 11 articles which had been found seditious constituted less than 0.01% of all the articles published by Stand News. Although paragraph 392 of the Reasons for Verdict stated that there was no evidence to establish whether the other 99.99% of the articles in Stand News did not contain seditious articles, the prosecution decided to proceed on the basis of the 17 articles (instead of the other 99.99%)  only after much consideration by a number of witnesses. Therefore, the court should take a holistic approach in considering the overall conduct of D2 and D3 in their roles as Chief Editor and Acting Chief Editor of Stand News when imposing the sentences. Ms Eu SC said that although the publication of even one seditious article amounted to an offence, the court in sentencing must take into account the fact that 99.99% of the articles published by the defendants were not alleged to be seditious, which was an essential point in determining the defendants’ culpability or guilt.

19.  Ms Eu SC also submitted that before this case, no guideline had been laid down by the court to restrict journalists, specifying what articles would amount to sedition or who could not be interviewed and so on. D2 and D3 definitely did not breach the law knowingly. D2 and D3 had also referred to other newspapers to show that similar types of coverage or commentaries also appeared frequently in various newspapers.

20.  In paragraph 189 of the Reasons for Verdict, the court says, “There is no statutory requirement under the Laws of Hong Kong for the media to comply with any professional codes, nor is there a law restricting the media from becoming a political or advocacy platform, but any speech or publication that endangers national security or public order will be restricted.” Ms Eu SC submitted that the lack of clear statutory or official requirements was precisely the reason for which the media might inadvertently breach the law when reporting on different public figures or contributed articles expressing different opinions. Ms Eu SC submitted that the same reason for finding the 11 articles seditious was that “the articles did not provide any objective basis”. However, neither the law nor the government had ever said that a commentary must “provide an objective basis” in order to avoid being alleged as seditious, and neither the defendants nor the bloggers could have anticipated such requirement in advance.

21.  Ms Eu SC also submitted that a substantial part of the verdict had been dedicated to pointing out the importance of the context of the relevant time period. In paragraph 158 of the Reasons for Verdict, the Court of Appeal was cited to have commented in Tam Tak Chi that the same speech might have different effects in different political settings or with different public sentiments. Previously acceptable coverage might become unlawful as a result of the social and legal changes after 2019. On such basis, instead of having the specific seditious intent, D2 and D3 only breached the law inadvertently in the course of their journalistic work.

22.  Ms Eu SC also submitted that D2’s decision of taking down more than 10,000 articles during the period of the offence and his resignation as the Chief Editor before his arrest showed that he had already left the conspiracy. According to Article 33 of the National Security Law, if a defendant “in the process of committing an offence … voluntarily discontinues the commission of the offence”, “a lighter penalty may be imposed, the penalty may be reduced” or even “be exempted” by the court. Ms Eu SC was of the opinion that this provision be applicable to D2’s case.

23.  As to D3’s culpability, Ms Eu SC submitted that A16 was the only article involving D3 in the conspiracy to publish seditious publications, and it was shorter in duration. Furthermore, upon receipt of the complaint letter from the police, Stand News immediately added notes at the beginning and the end of A16 respectively to ensure that readers were clear of the stance of the police. This is utterly different from the nature of the articles found to be seditious in other cases.

24.  For the above reasons, Ms Eu Eu SC asserted that the offence committed by D2 and D3, in terms of gravity, was relatively less serious, or even one of the least serious, among the many cases involving sedition, and the court should therefore deal with them leniently.

25.  The second ground advanced by Ms Eu SC was that the case was originally scheduled on 4 October 2023 for verdict, but it was adjourned. Eventually, it was not until 29 August 2024 that the three defendants were found guilty. Ms Eu SC submitted that D2 and D3 had been strictly complying with the bail conditions since they were granted bail in late 2022, and they had not done or said anything that could reasonably be regarded as endangering national security. It would therefore be unduly harsh to sentence them in a way requiring them to return to prison.

26.  Ms Eu SC further emphasised that on 24 March 2024, rule 69 of the Prison Rules was amended with the addition of the new provisions rules 69(1A)  to (1C), giving the Commissioner of Correctional Services an additional power, where a prisoner is serving a sentence for a national security offence, to refuse to grant a remission of one-third of the sentence which would otherwise be available to the prisoner under rule 69(1)  on the ground of good conduct. Ms Eu SC submitted that if the verdict of the case had been delivered on 4 October 2023, the two defendants would not have been subject to the amendments to the Prison Rules, but at present there was the possibility that they could not have the one-third remission in respect of their terms. The court was therefore required to make adjustment in sentencing and should not send D2 and D3 back to prison, as this would be unfair to them.

27.  The third ground put forward by Ms Eu SC was about D3’s medical condition, and I will deal with D3’s health condition later. Ms Eu SC also submitted that while awaiting the verdict, D3 also lost a scholarship to study abroad.

Reasons for sentence

28.  Section 10(1)  of the Crimes Ordinance provides that any person who publishes and/or reproduces any seditious publication shall be liable on first conviction to a fine at level 2 (ie HK$5,000)  and to imprisonment for 2 years. Since this was the first time that the three defendants had been convicted, pursuant to section 159C(4)  of the Crimes Ordinance, where the offence is punishable with imprisonment, the person convicted shall be liable to imprisonment for a term not exceeding the maximum term of 2 years.

29.  The culpability of each defendant is, of course, the most weighty consideration in sentencing. It directly affects the options available for sentencing, and the length of the term when imprisonment is the only appropriate sentence.

30.  I must first point out this: the offence of which the three defendants were convicted is that between the 7^th day of July, 2020 and the 29^th day of December, 2021, they conspired together and with other persons to publish and/or reproduce seditious publications, and not merely conspiring to publish and/or reproduce the 11 articles (A1, A4, A5, A7, A10 to A16)[1] ruled by this Court to be seditious publications. These 11 articles were the overt acts of the conspiracy, and it was from these overt acts that the court inferred the existence of the conspiracy and that the defendants together with others published seditious articles from time to time under such conspiracy.

31.  In addition, I must also point out that it was not for performing journalistic duties of reporting that the three defendants were convicted. I have ruled that sedition is an offence of specific intent, and that the prosecution must prove either that the publisher had the seditious intentions of section 9(1)  at the time of publishing the seditious publications (intentional), or that the publisher knew at the time of publishing that the seditious publications had the seditious intentions of section 9(1)  but was reckless as to the consequences and still published them (being reckless as to the consequence of sedition): see paragraph 183 of the Reasons for Verdict. I have found that articles A1, A4, A5, A7 and A10 to A16 are seditious publications. Moreover, it is undisputed that D2, as the Chief Editor of Stand News, approved the online publication of articles A1, A4, A5, A7 and A10 to A15 on Stand News, and D3, as the Acting Chief Editor of Stand News, approved the online publication of Article A16 on Stand News. As they have approved the publication of the articles in question, they were, of course, aware of the contents. I have also found that they knew and approved of the articles’ seditious intentions and provided Stand News as the publishing platform to incite hatred against the Central Authorities or the Hong Kong Government, to excite inhabitants of Hong Kong to attempt to procure alteration, otherwise than by lawful means, of matters established by law, and to bring into hatred against the administration of justice. In any event, they were at least reckless as to the consequences that these seditious articles could give rise to. I have also ruled that the intention of D2 and D3 amounted to D1’s intention: see paragraphs 486 to 488 of the Reasons for Verdict.

32.  In determining whether the three defendants had the requisite seditious intention under the law, I have drawn inferences from the source of funding of Stand News, the political background of its shareholders, its editorials, published articles, publications, personnel appointments and so on: see paragraph 397 of the Reasons for Verdict.

33.  From the establishment of Stand News, the contents of the Launch Statement, and the trust arrangements made by Tsoi, Yu and D2 with the funders who did not wish to disclose their identities (who according to the Launch Statement approved of the journalistic philosophy of Stand News), I am certain that it was a lie for D2 to claim that Stand News had no political stance. I have also held that D2, Tsoi and others, for the benefit of the anonymous funders, operated an online media outlet called Stand News in Hong Kong to support and promote localism for Hong Kong’s local autonomy: see paragraphs 449 and 450 of the Reasons for Verdict. This Court went on to analyse three editorials which had been published by Stand News and the paper publication “News Stand” published by Stand News, and ruled that the political ideology of Stand News was localism, and that the line it took as a media outlet was to support and promote local autonomy in Hong Kong, and that it had become a tool for smearing and vilifying the Central Authorities and the HKSAR Government during the Anti-Extradition Law Amendment Bill Movement: see paragraph 485 of the Reasons for Verdict. Based on the line taken by Stand News, it was further inferred that D2 and D3 knew and approved of the seditious intentions of the 11 articles at the time of publishing them and provided Stand News as the publishing platform, and therefore had the specific seditious intent, or at least was reckless as to the consequences of the sedition.

34.  I therefore do not accept the mitigation that D2 and D3 were convicted for performing the reporting duties of journalists.

35.  Ms Eu SC asserted that before this case, no guideline had been laid down by the court to restrict journalists, and D2 and D3 therefore did not know what they were not allowed to report, and that they did not knowingly commit the offence, but just breached the law inadvertently.

36.  I do not agree with this submission. This case is the first trial on a seditious offence involving the media in Hong Kong after the reunification with China. Nevertheless, sedition has been a statutory offence since 1938, Fei Yi Ming v The Crown [1952] 36 HKLR 133 is a precedent recorded in the law report. According to the decision of the Court of Appeal in the case, incitement to violence was not an element of the statutory offence of sedition in Hong Kong. Before the judgment in the case is overturned, this remains a valid principle of law that gives guidance to media practitioners, including D2 and D3.

37.  Moreover, section 9(1)  of the Crimes Ordinance specifies which intentions constitute seditious intention. Section 9(2)  further provides that even if a publisher publishes a statement or publication that may fall within the seditious intention under section 9(1), as long as the publisher only intends to point out the errors in the measures of the Government, in the constitution, legislation or administration of justice, or even to persuade the inhabitants of Hong Kong to make lawful alteration of any matter established by law, he will not be regarded as having a seditious intention. Therefore, one can see that the law has already provided the guideline on what media practitioners can or cannot publish, and what is crucial is clearly the publisher’s intention. Moreover, as the freedom of speech and freedom of the press are protected by the Basic Law, the Hong Kong Bill of Rights and the International Covenant on Civil and Political Rights, even though there is no precedent involving the media after the reunification, there are still a large number of overseas cases, including those of the European Court of Human Rights, to which journalists can make reference. The European Court of Human Rights has formulated guidelines on the duties and responsibilities of editors, and I have set out some articles of the guidelines in paragraph 190 of the Reasons for Verdict. Such guidelines are readily available on the Internet.

38.  Ms Eu SC submitted that neither the legislation nor the Government had ever pointed out the requirement for commentaries to “provide an objective basis” to avoid being accused of being seditious. However, it is not necessary for that to be pointed out by law or the Government. Anyone who works in journalism knows that the primary responsibility of journalism is telling the truth, not lies or half-truth. When a comment or an opinion is supported by true facts, or by facts verified by the publisher with his best endeavours to be true, it will naturally have an “objective basis”.

39.  When the court has to determine whether a defendant has published a seditious publication, it will first consider whether the publication in question has any seditious intention. If the answer is no, the case ends and the defendant is not guilty; it is only when the answer is yes that the court will further consider whether the defendant himself has any seditious intention (specific seditious intent or recklessness). In my view, in respect of journalists, the order of consideration can be reversed. If a person, including a journalist, intends to publish an article which criticises the Government and/or the regime, he may first consider what his intention is in publishing the article. If he is to smear and vilify the Central Authorities and the HKSAR Government with the intention of seriously undermining the legitimacy, recognition or authority of the Central Authorities, HKSAR Government and its institutions, the constitutional order or status of the HKSAR, and the judicial system of the HKSAR; or intends to cause serious harm to the relationship between the Central Authorities or the HKSAR Government with Hong Kong inhabitants, or among the Hong Kong inhabitants one another, then he of course has to be liable for the offence. On the other hand, if his intention falls under section 9(2), and instead of smearing, vilifying or spreading hatred or fear, his criticism or opinion is based on facts confirmed to be true by proper verification and authentication, and he maintains a faithful and impartial attitude in presenting, describing and recounting his comments or opinions in compliance with the code of ethics of journalism, in such a case, he will not be guilty of sedition even if his criticisms are strong and sharp. Even if it is so unfortunate that he is prosecuted, apart from the inevitable difficulties that the prosecution will encounter in proving its case, he will be able to point out in no uncertain terms how his strong criticisms are justified and why his publication does not have the seditious intention specified under section 9. Only those who intend to “skirt the line” will worry about breaching the law inadvertently, because in such a case, it is not based on the intention of publishing, but rather on whether the content of the speech or article will be lucky enough to “get round the law”.

40.  In this case, Stand News undoubtedly gave extensive news coverage during the period of the offence, covering news of official and unofficial figures, their speeches, court news, and so on. However, it does not mean that the three defendants would not have any seditious intention in publishing other articles. Stand News itself was an online news media outlet, and it certainly had to present itself as such, but the media today rely more on their commentaries to attract readers.

41.  During the period of the offence, Stand News, through D2 and D3, was definitely not a pure practitioner of journalism. The interview with Ho Kwai-lam (Ho)  and the publication of the interview article A1 by Stand News obviously helped Ho who was a candidate in the 35+ primary election of the democratic camp in her electioneering campaign. In the New Territories East Primary Election forum, when the two facilitators pointed out that Ho had no record of political work and questioned her why voters should choose her instead of other people such as Chow Ka-shing, Ho did not answer at all. However, through the interview, the reporter of A1 gave Ho a chance to say that she had already taken part in writing a feature article on localism back in 2014, that she was awakened to the June Fourth Incident, and that she had travelled to Ukraine to study pro-democracy movement. The author of A1 also incorporated in A1 the video clip recording Ho calling for others to support Dennis Kwok and other legislators in filibustering in the Legislative Council so as to hold back the enactment of the national anthem law. Moreover, the author specifically let Ho spell out the reasons why voters should vote for her instead of other candidates, thereby enabling Ho to say that she would not compromise with the regime even if there was mutual destruction. After that, the author asked the readers sentimentally if they would vote for Ho. In addition, after A1 was published on July 7, 2020, undisputed evidence shows that Stand News published A1 again on its network on July 11 2020, i.e. the first day of voting in the primary election, while other interviewees’ profile articles were not treated in the same way: see Exhibit PA2(1)(B). There is no doubt that Stand News was electioneering for Ho, and the only reasonable and irresistible inference is that Stand News and D2 approved of Ho’s seditious statements and published these seditious statements with intent.

42.  Ho was also interviewed by other media, which were published as well. However, those other media did not state in their articles or act in any way to show that they approved of Ho’s seditious comments, nor did they campaign for Ho to win in the 35+ Primary Election.

43.  Regarding another profile article, A16, I have ruled that A16 did not provide any objective basis in alleging that the academic freedom of the Chinese University of Hong Kong (CUHK)  was threatened and needed to be protected, and that it criticised the police law enforcement actions by using untrue facts and glorified the rioters’ acts. The article omitted the fact that the police had to deal with the riot occurring at CUHK at that time, and even portrayed the police as suppressing the students. When publishing article A16, Stand News even incorporated a video clip to compare the scenes in the campus during the riot with how it looked 2 years afterwards. The video clip depicted a number of scenes of the riot in the campus, showing slogans such as “Liberate Hong Kong, Revolution of Our Times”. In my opinion, this is obviously the editorial decision of Stand News, intending to re-display the protest slogans by means of article A16, and to rekindle the violent protests which have already been cooled down, thereby bringing into public hatred against the HKSAR Government and the police. It can be seen from this that Stand News and D3 were not simply discharging their responsibility of providing news coverage as media, but also published seditious articles with intent.

44.  Other members of the media have also published articles of interviews with those protesters who had participated in the so-called “Defence of CUHK”. Although the interviewees still claimed that they were then defending CUHK, they did not suggest that the police or the regime had jeopardized the academic freedom of CUHK at that time. Those articles merely recorded what the protesters said, the impact of the incident on them and on the relationship with their families, and some of the views of other students and professors. At the end of an interview article in Ming Pao (Exhibit D2(333)), under the column of related articles, an interview article titled “[The First Anniversary of the University Beacon] Police Officer: Never Intended to Invade CUHK Defensive War is a Forged Issue” was added, bringing the effect of balancing the content of the article. However, nothing similar was done by Stand News and D3. Stand News and D3 had listed out the police complaints in the form of the Editor’s Words at the beginning and end of A16, but the publication of A16 just continued. It was a clear message of disregarding the police complaints and deepening the contempt for the police.

45.  As seen in the editorial of Stand News on 14 June 2019, “Why we ‘target’ the police” (14 June 2019)  (Exhibit P37(6)), Stand News described the police as the guns and cannons in the hands of the government, who used force to build a high wall behind which the executive could hide and do whatever it pleased. In the editorial on 23 July 2019, “Attacks on journalists are a big deal. Collapse of the system is a bigger deal” (23 July 2019)  (Exhibit P37(9)), Stand News accused the police for colluding with the white-clothed men, and even made use of the matter by saying that police brutality was caused by the absence of a democratic system in Hong Kong. In the editorial on 1 July 2020, “Hold fast to every inch of free soil. Use every glimmer of light making way through tiny crevices” (1 July 2020)  (Exhibit P33(10)), Stand News alleged that the National Security Law had turned Hong Kong into a place of totalitarianism without freedom. Stand News had also published blog posts of Chan Pui-man, Law Kwun-chung, Cheung Kun-yang and Au Ka-lun (Au), which wantonly attacked and discredited the National Security Law, showed contempt for the judiciary, and in particular, described the designated judges as being manipulated by the regime, and said that these judges were willing to be manipulated or cooperated on their own accord. However, this could not possibly be correct. Au and D2 just had no evidence whatsoever to show that the regime manipulated the judges. Even more so, there was no evidence to prove that the designated judges had been submissive to the regime instead of performing their duties in accordance with the Judicial Oath which they had taken. They could not have been unaware that Alex Lee J was one of the first group of judges of the Court of First Instance appointed as Designated Judges because he was the Designated Judge dealing with the Tong Ying Kit case, which was the first National Security Law case. According to them, Alex Lee J must be a bouncer for the regime. If this were true, could they explain why Alex Lee J allowed Lai Chee-ying to have bail? As a matter of fact, Au had never explained this aspect, and D2 had just turned a blind eye to this.

46.  The messages disseminated through the editorials and blog posts published by Stand News (which were approved by D2)  were that the Central Government was a totalitarian government, the HKSAR Government was a puppet of the Central Authorities, and the police and the judges were bouncers of the regime. The messages intended to be disseminated would definitely lead Hong Kong people to hatred and contempt against the Central Authorities and the HKSAR Government and refusal to accept the legitimacy and recognition of the Central Authorities, the HKSAR Government and the constitutional order. Ms Eu SC submitted that none of the articles found to be seditious were the Editor’s Words or opinions of Stand News. However, these articles fully helped Stand News in promoting the germination and growth of localism in Hong Kong. After all, even though Stand News was not the author, it remained the publisher.

47.  Ms Eu SC has repeatedly emphasised that 99.99% of the other articles of Stand News were not seditious. This point has been answered in paragraphs 390 to 393 in the Reasons for Verdict. I do not intend to comment on the remaining articles which the prosecution has not referred to as overt acts so as to avoid being accused of broadening the basis of prosecution. However, in response to Ms Eu SC’s submission, reference may be made to another blog post of Au as an example, namely, “The Court of Final Appeal welcomes the new order of the politics” (TSN435), dated 11 February 2021. This article came after the Court of Final Appeal had overturned Alex Lee J’s decision to grant bail to Lai Chee-ying. Au said in this article, “Reading just a few paragraphs of the CFA judgment on the appeal against Lai’s bail, one can see that the judges have fallen on their knees with no reservation very quickly. The Authority is always right, and the rule of law and human rights are just ornaments.” Au also said, “The judges’ understanding of the social background entirely came from the standpoint of the rich and powerful instead of the perspective of human rights and justice,” and “the judgment has briefly mentioned the principles that the Hong Kong people enjoyed civil liberties and the presumption of innocence (paragraph 22), but these amount to sweet-talk only.” He went on to say, “The CFA has refuted some of the technical arguments of the Department of Justice … showing that the CFA can still make some decisions on its own and have some authority, but these refutations of technical details are nothing more than attempts to grab the sand after falling to the ground.” There are many other examples that can be quoted. It can be seen that Au showed no respect at all even to the judgment of the CFA. He spoke in a flippant tone full of contempt. He did not put forward any substantive justifications, nor did he have, or could he possibly have, any objective reasons to believe that the CFA Judges would not abide by the Judicial Oath that they had taken when discharging their duties. Undoubtedly, in light of the status of the CFA judges in the judicial sector, they could not possibly be manipulated by any political power. This article obviously intended to bring into hatred against the administration of justice in Hong Kong, having the seditious intention under section 9(1)(c). D2 also turned a blind eye to it.

48.  This Court does not intend to analyse any other article. It is sufficient for me to rule that this submission by Ms Eu SC is not helpful to the sentencing of the defendants.

49.  I do not accept that Article 33 of the National Security Law applies to D2. D2 did not, in the course of committing an offence, voluntarily discontinue the commission of the offence. He removed some of the articles only to reduce the risk of having the law enforcement departments taking action against him and Stand News.

50.  It is the view of this Court that during the period of the offence, the three defendants were not engaging themselves in genuine journalistic work, but participating in the so-called struggle at that time. It can be seen from the editorials of Stand News and News Stand that they sided with the protesters, resisting the Government. I am certain that the crime committed by the three defendants was very serious. The conspiracy in question had lasted for about 1 year and 5 months, and even if one only focuses on the eleven articles which have been found seditious, they were published mostly at a time when over half of the people in the Hong Kong society had the least trust in the Central Authority, the HKSAR Government, the Police Force and the Judiciary. Given that Stand News had about 1,600,000 followers, in my view, these seditious articles must have caused significant harm to both the Central Authorities and the HKSAR Government and also its inhabitants, although it is difficult for me to quantify such harm.

51.  Due to the gravity of the offence, I find that imprisonment is the only appropriate sentence.

52.  As to the length of the term, the maximum penalty is 2 years’ imprisonment. Such maximum penalty is totally disproportionate to the gravity of the offence. Under the current Safeguarding National Security Ordinance, the maximum penalty for the crime of sedition may be up to 7 years’ imprisonment.

53.  Based on D2’s culpability, I adopt 23 months’ imprisonment as the starting point for sentencing.

54.  I now deal with the second ground for mitigation put forward by Ms Eu SC. I accept that the length of time taken in determining this case has put pressure on the two defendants.

55.  On the other hand, although the case was originally scheduled on 4 October 2023 for verdict and I adjourned it to 15 November 2023, a subsequent Privy Council decision came into being, leading to a further adjournment of this case pending the decision of the Court of Appeal in the case of Tam Tak Chi. After the decision in Tam, this case was originally set down on 29 April 2024 for verdict, which was nevertheless further adjourned to 29 August 2024. In my view, even if the verdict could have been delivered on 29 April 2024, the Prisons Ordinance had already been amended by that time, so the further adjournment did not put the defendants in any worse position. In any event, even if the defendant is sentenced today, it does not mean that he cannot possibly have the one-third remission in his sentence. He would be entitled to the remission concerned provided that he satisfies the Commissioner of Correctional Services that he would not commit any national security offence again. Ms Eu SC requested this Court to make corresponding adjustment on the sentence in view of this point. However, as I am not in the position to exercise the power concerned on behalf of the Commissioner of Correctional Services, I simply have no jurisdiction to make any adjustment in this regard.

56.  Because of the additional pressure placed on D2 by the time taken for completing the trial, I reduce his sentence by 2 months. Save for that, I do not see any factor for any further mitigation. I sentence D2 to a term of 21 months’ imprisonment.

57.  Regarding the sentence of D3, according to my findings, he joined the conspiracy in question only when he worked as the Acting Chief Editor of Stand News after D2’s resignation. Therefore, D3’s participation lasted only about 2 months and he published only one seditious article. Therefore, I adopt 14 months’ imprisonment as the starting point.

58.  As for mitigating factors, D3 can also receive some reduction in sentence due to the extended time for completing the case.

59.  Apart from that, Ms Eu SC submitted three medical reports of D3. D3 is suffering from the severe and rare ANCA-vasculitis, which results in the antibodies in his body attacking his own body cells, leading to inflammation of various blood vessels, in particular the blood vessels in the kidneys. Hence, he is suffering from severe kidney disease.

60.  The health condition of D3 was relatively stable prior to July 2024, but currently his kidney function shows signs of deterioration. Examinations reveal that he is suffering from another severe and rare form of immune-mediated kidney disease (the medical term being “severe lupus nephritis with focal crescents”). He is again treated with various potent immunosuppressive medications. His condition is currently stable. However, due to this new episode of kidney disease, his current kidney function is below 30% of normal. He is attending regular examinations at Queen Mary Hospital, and he requires frequent monitoring and examinations as frequent adjustment of medications is required to control his condition. Under the effect of poor kidney function and immunosuppressive medications, he is prone to develop various kinds of infections, including life-threatening ones. Also, since his kidney reserve is already severely compromised, his kidney failure may deteriorate rapidly to the point of requiring dialysis therapy, especially when there are complications like infections, gastroenteritis or dehydration, etc. In the doctor’s opinion, the severity of D3’s kidney disease has reached stage 4 already. As he is experiencing new symptoms, his condition may progress more rapidly to the most severe stage 5, requiring hospitalization for treatment, dialysis and kidney transplantation. Ms Eu SC has pointed out that if D3 has health problems after returning to the prison, the Correctional Services Department may not necessarily send him to Queen Mary Hospital. However, receiving continuous medical treatment and care from the attending doctor is of utmost importance for D3.

61.  In view of D3’s health condition, I give him a further reduction of sentence. Taking into consideration all the mitigating factors, I am of the view that the appropriate reduction should be 3 months. As D3 has only been remanded for 10 months and 9 days, this means D3 is required to return to the prison to serve the remaining 21 days of his sentence. However, based on the doctors’ reports, D3 needs to be under constant medical surveillance and the risk of infection is very high. In my view, D3’s life may be jeopardized if he is sent to prison, and it is important for D3 to be able to readily receive medical treatment from his current attending doctor. Therefore, I grant D3 a further reduction of sentence, imposing on him a term which allows him an immediate release.

62.  Regarding the sentence of D1, the only viable sentencing option is a fine. I impose a fine of HK$5,000 on D1, this is the maximum penalty under the legislation.

Annex 1

Publication	Publication title	Interviewee/‌Blogger*	Publication date	Last day of publication (as from when it was discovered by the police)	Estimated number of days of publication
A1	[Legislative Council Election] Interview - After her press card was removed, is there anyone else going with her?	Ho Kwai-lam	7.7.2020	29.12.2021	540
A4	[Blog post] This week’s questions of general knowledge for Hong Kong people	Chan Pui-man*	12.9.2020	24.6.2021	285
A5	[Blog post] In the new normal under the National Security Law, how should we resist and think?	Law Kwun-chung*	20.9.2020	24.6.2021	277
A7	[Blog post] Being strong in troubled times: Troughs, darkness and hope	Law Kwun-chung*	13.12.2020	25.6.2021	194
A10	[Blog post] In response to those being wanted under NSL: History isn’t left blank, the truth lives on	Cheung Kwan-yang*	28.12.2020	25.6.2021	179
A11	[Blog post] 2020 Hong Kong new words	Allan Au Ka-lun*	29.12.2020	24.6.2021	177
A12	[Blog post] Wearing official robes and a wig for a bad show	Allan Au Ka-lun*	22.2.2021	24.6.2021	122
A13	[Blog post] Hong Kong - Belle Isle	Law Kwun-chung*	2.3.2021	25.6.2021	115
A14	[Blog post] “Sedition” as a legal weapon	Allan Au Ka-lun*	1.6.2021	29.12.2021	211
A15	[Blog post] Disaster scene	Allan Au Ka-lun*	22.6.2021	29.12.2021	190
A16	[Interview] “Two years of conflicts at CUHK”: Graduates commemorate walking to protect the school and mourn the loss of humanistic spirit in the mountain city	Claimed to be CUHK Alumni	11.11.2021	29.12.2021	48