HKSAR v. WONG KIN CHUNG

[English Translation - 英譯本]

CACC 92/2024, [2025] HKCA 349

On Appeal From [2024] HKDC 640

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO 92 OF 2024

(ON APPEAL FROM DCCC 210 OF 2023)

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JUDGMENT

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

1.  The applicant was charged with one count of “conspiracy to incite the commission by other persons of the offence of secession”, contrary to Articles 20 and 21 of the National Security Law (NSL)[1] and sections 159A and 159C of the Crimes Ordinance[2].  He pleaded guilty before HH Judge Lin (“the trial judge”) and was sentenced to 60 months’ imprisonment.  He now seeks leave to appeal against the sentence.[3]  The principal issue to be dealt with by this Court is whether the tiered sentencing bands under Article 21 of the NSL (NSL21) apply.

A.     Proceedings at trial

A1.    Particulars of Offence

2.  The Particulars of Offence averred that the applicant  “between the 1st day of July, 2020 and the 1st day of November, 2022, both dates inclusive, in Hong Kong, conspired with others to incite other persons to organize, 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 or any other part of the People’s Republic of China from the People’s Republic of China; altering by unlawful means the legal status of the Hong Kong Special Administrative Region or of any other part of the People’s Republic of China; or surrendering the Hong Kong Special Administrative Region or any other part of the People’s Republic of China to a foreign country.”

A2.    Facts of the case

3.  The facts admitted by the applicant can be summarized as follows.[4]

A2.1  Hong Kong Independence Party

4.  The Hong Kong Independence Party (HKIP) was a political party and a limited company registered in the applicant’s name in the United Kingdom.  It advocated for separation of the Hong Kong Special Administrative Region (HKSAR) from China; alteration by unlawful means of the legal status of the HKSAR, and surrender of the HKSAR to a foreign country, including but not limited to, seeking the restoration of British rule over the HKSAR; requesting the United States, the United Kingdom, and/or NATO to send troops to invade the HKSAR; seeking foreign support for the separation of the HKSAR from China, and paving the way for the HKSAR to eventually become a British Commonwealth country.

A2.2  The online posts in question

5.  HKIP had six online platforms, social media accounts and channels:

(1)     Website of HKIP: The “About Us” page of the website stated that HKIP was formed in 2014 by some Hong Kong people now residing in Europe, and was registered as a political party in the United Kingdom in 2015.  Its primary aims were to support the people of Hong Kong in their struggle for self-determination; to awaken “the Hong Kong nation” to reclaim their national dignity; to draw international attention to various actions by China that completely violated the Joint Declaration; and to support independence of the “Hong Kong nation” by breaking free from the Chinese colonial rule, returning to the fold of the British Commonwealth, and becoming an independent nation.

(2)     Facebook account of HKIP: The profile page of the account stated that the aim of HKIP was to seek independence for the HKSAR, enabling the HKSAR to “rejoin” the British Commonwealth as a member.  As at 22 November 2021, the account had 6,702 “likes” and 7,330 “followers”.

(3)     The Twitter account of HKIP: The profile page of the account stated that actions should be taken to justify the formation of an Eight-Nation Alliance across the world to invade the HKSAR to “liberate Hong Kong”.  The account was set up in October 2017 and had 198 “followers” as at 22 December 2021.

(4)     The Instagram account of HKIP: The profile page of the account stated that the Sino-British Joint Declaration should be terminated, that the United Kingdom should be held accountable, that the three major treaties (referring to the three 19th-century major treaties through which the United Kingdom gained territorial control over parts of Hong Kong) should be reinstated, that “breaking away from communism and colonialism” should be done, that “Hong Kong should be liberated”, and that the HKSAR should “rejoin” the British Commonwealth as a member.  As at 22 December 2021, the account had 241 “fans.”

(5)     The Telegram channel of HKIP: The channel’s description stated that the HKSAR should move towards independence by following the path of the three Baltic states and should hold the United Kingdom accountable regarding its 156-year rule over Hong Kong.  The channel was established on 23 November 2019.  As at 29 September 2022, it had 1,724 subscribers.

(6)     The Telegram group of HKIP: The group’s description stated that the people of the HKSAR should authorize the United Kingdom to terminate the Sino-British Joint Declaration, address China’s serious violation of the agreement(s), and “break away from communism and colonialism”; while the United States should terminate the Hong Kong Policy Act.[5]  The group was established on 30 September 2019.  As at 21 November 2022, it had 988 members.

6.  On the six online platforms, HKIP repeatedly propagated its Five-Point Platform:

(1)     Abolition of the Sino-British Joint Declaration and the Hong Kong Policy Act;

(2)     Declaration of China’s illegal occupation of the HKSAR;

(3)     During the abeyance of Hong Kong’s sovereignty, the UK and the USA shall reinstate the three major treaties (namely the Treaty of Nanking, the Convention of Peking, and the Convention for the Extension of Hong Kong’s Territory), Hong Kong’s territory shall be entrusted with the UK and the USA jointly in administration, and there shall be official declaration of Hong Kong as a neutral region;

(4)     The stationing of British and American troops in the HKSAR and the use of the HKSAR’s foreign exchange reserves to pay the North Atlantic Treaty Organization (“NATO”); and

(5)     Establishment of the HKSAR as a British Commonwealth country with independent sovereignty.

7.  Between 16 September 2019 and 1 November 2022, the six online platforms published a total of 42 posts advocating the separation of the HKSAR from China.  Among the 42 posts in question, 21 pertained to four specific activities, namely:[6]

(1)     7 posts about HKIP’s support for and/or organization of protests outside the British Consulate General in Hong Kong;

(2)     1 post about HKIP’s claim that an email had been sent to mercenaries requesting a quote for “crushing all government forces of the HKSAR”;

(3)     12 posts about HKIP’s online petition to the White House demanding that the United States discontinue the Hong Kong Policy Act and terminate the Sino-British Joint Declaration, and that the United States and NATO send troops to occupy the HKSAR; and

(4)     1 post about an online crowdfunding campaign launched by HKIP to raise “military funds” to realize the independence of the HKSAR.

8.  On 30 June 2020, the NSL came into effect in Hong Kong. Between 1 July 2020 and 1 November 2022, 35 of the above posts remained published on the six online platforms.  The hyperlinks of the posts on HKIP’s Facebook account were reposted on its other online platforms.[7]

9.  HKIP’s website, Facebook account and Instagram account were closed before December 2021.  However, its remaining Twitter account, Telegram channel, and Telegramgroup stayed active and accessible to members of the public on the day of the applicant’s arrest, i.e. 1 November 2022.

A2.3  The applicant’s role

10.  The applicant was the chairman of HKIP and one of the administrators of its six online platforms mentioned above.  He had full knowledge of the publication of the posts and their ongoing publication on the six online platforms.

11.  In a cautioned video-recorded interview, the applicant admitted that HKIP was registered in his name as both a political party in the United Kingdom and a limited company.  He was entrusted with managing the social media accounts and website of HKIP.  Additionally, he became an administrator of the Telegram group of HKIP.  The applicant claimed to have no knowledge of HKIP’s operations or other information, and that he did not author the profiles or posts of the above online media.  He also indicated that his mobile phone had connections with the aforementioned online media because it had been used by others.

A3.    Reasons for sentence

12.  The applicant was born in Hong Kong and holds a Hong Kong identity card. He was 41 years old at the time of the conviction and he claimed to be a musician.  He emigrated in 2014, holds a Portuguese passport and has obtained right of abode in the United Kingdom.  Although he studied and worked in the United Kingdom, he still has relatives in Hong Kong.

13.  The applicant stated that his mother was suffering from dementia, and he hoped to be released early enough to reunite with her.  He submitted mitigation letters written by friends, former colleagues, and supervisors.  The mitigating factors cited in the letters included the applicant’s lack of hatred towards China.  The applicant also argued for a sentence reduction under NSL33.

14.  Having considered the relevant sentencing principles, the trial judge pointed out that the offence in the present case was a premeditated act spanning 28 months which took place during a tumultuous time in society, and that HKIP’s advocacy, which distorted history and demonized China, had probably led to many people being called upon to use force to disrupt social order, and had even provided ammunition to critics on the international stage, enabling foreign politicians to criticize, boycott, and even suppress China and the HKSAR on the pretext of assisting Hong Kong. After full consideration of the number of platforms involved, the number of followers (about a thousand people followed), the number of people potentially influenced, the context of the incident, the content of the posts and the international implications involved, the trial judge found that the circumstances in the present case were of a serious nature and adopted a starting point of six and a half years’ imprisonment.[8]

15.  The trial judge was of the view that apart from providing the mobile phone passcode upon police request, the applicant did not engage in any other substantive conduct that satisfied the criteria under NSL33.  Furthermore, following his arrest, the applicant attempted to evade responsibility by claiming that he did not know the other accomplices and he failed to provide any information.  Therefore, the trial judge refused to grant the applicant a sentence reduction by virtue of NSL33.[9]

16.  The trial judge pointed out that none of the applicant’s personal background, circumstances or his achievements in music were valid mitigating factors.[10]  Although the applicant pleaded guilty, which would normally have earned him a one-third sentencing discount,[11] the trial judge, having considered the sentencing ranges and the lower limit under NSL21, merely reduced the applicant’s sentence to one of 5 years’ imprisonment.[12]

B.     Grounds of Appeal

17.  The applicant raised three grounds of appeal:

(1)     The trial judge erred in applying the tiered sentencing bands under NSL21 to conspiracy offences under sections 159A and 159C of the Crimes Ordinance, which led to the erroneous application of the minimum sentence and deprived the applicant of the discount to which he was entitled for a guilty plea.

(2)     The trial judge erred in defining the case as having “circumstances…of a serious nature”, and the starting point of six and a half years’ imprisonment was manifestly excessive.

(3)     The trial judge failed to consider or adequately consider the role played by the applicant in the conspiracy.

We shall now examine them one by one.

C.      Whether the tiered sentencing bands under NSL21 apply

C1.    The Principle of Convergence

C1.1  Concerning the offence of conspiracy

18.  At paragraph 19 of his written submissions, Mr. Randy Shek[13], for the applicant, submitted that the term “conspiracy” or its equivalent does not appear in NSL20 nor NSL21.  By contrast, the term “conspires” is used in NSL29 and NSL30 regarding “collusion with a foreign country or with external elements to endanger national security”.  This contrast demonstrated that the law drafters deliberately chose to exclude conspiracy offences from NSL20 and NSL21.  At first glance, this paragraph could be read as excluding conspiracy offences from NSL20 and 21, which would follow that the relevant penalties do not apply.  In his oral submissions, Mr Shek clarified that the meaning of this paragraph was not that conspiracy offences were excluded from NSL20 and NSL21, but merely that the relevant penalties did not apply.  Mr Shek explicitly acknowledged that offences under the NSL may include those of conspiracy.

19.  We are of the view that the question of whether conspiracy offences are excluded from NSL20 or NSL21 is an important legal issue that warrants a detailed explanation from a jurisprudential perspective to clarify the doubts or misunderstandings that may arise from paragraph 19 of the applicant’s written submissions.

20.  NSL20 and NSL 21 read as follows:

“Article 20 A person who organizes, plans, commits or participates in any of the following acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification shall be guilty of an offence:

(1) separating the Hong Kong Special Administrative Region or any other part of the People’s Republic of China from the People’s Republic of China;

(2) altering by unlawful means the legal status of the Hong Kong Special Administrative Region or of any other part of the People’s Republic of China; or

(3) surrendering the Hong Kong Special Administrative Region or any other part of the People’s Republic of China to a foreign country.

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.

Article 21     A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence under Article 20 of this Law shall be guilty of an offence. 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.”

Although neither of the Articles explicitly refer to conspiracy, this does not mean that the legislative intent was to exclude the offence of conspiracy.

21.  According to the Court of Final Appeal’s interpretation of the NSL, the legislative intent was for the NSL to operate in tandem with the laws of the HKSAR, seeking convergence, compatibility, and complementarity with local laws; and in the event of inconsistencies, NSL provisions shall prevail under NSL 62: see HKSAR v Lai Chi-ying (2021) 24 HKCFAR 33, paragraphs 21 to 29.  In other words, the NSL was intended to fit in and to function coherently with the HKSAR’s legal system, with local laws operating in normal fashion unless they are expressly or by necessary implication displaced by inconsistent provisions of the NSL: see HKSAR v Lui Sai-yu (2023) 26 HKCFAR 332, paragraph 25. As emphasized by the Court of Final Appeal, the convergence principle is reflected in various aspects of the NSL, such as Article 3(3),[14] Article 4,[15] Article 5,[16] Article 8,[17] Article 41(1),[18] Article 42(2),[19] and Article 45.[20]  These provisions provide that the local laws continue to apply within the framework of the NSL, underscoring that the convergence principle mentioned above is a fundamental concept of the NSL.

22.  In light of the above legislative intent of the NSL, the convergence, compatibility and complementarity between the NSL and the criminal laws of the HKSAR shall form a comprehensive criminal law mechanism to deal with crimes endangering national security under the NSL. Accordingly, although the offence of conspiracy is not expressly mentioned in the provisions of the NSL, the provisions on conspiracy under the local laws, namely section 159A of the Crimes Ordinance, and the relevant principles shall apply.  In the event of inconsistencies with any provision(s) of the NSL, the relevant NSL provision(s) shall prevail.

23.  In the present case, according to the convergence principle, although conspiracy is not expressly mentioned in either NSL20 or NSL21, section 159A of the Crimes Ordinance shall apply, making it an offence to conspire to incite others to commit the crimes under NSL20.

C1.2  Sentencing for conspiracy offences

24.  As to sentencing, the Court of Final Appeal said this in Lui Sai-yu:

“27. It is clear that the convergence principle also applies to the interpretation of the NSL’s sentencing provisions. Within the framework laid down by the NSL, local sentencing laws and principles are intended to apply in tandem with the relevant NSL provisions.”

After citing and interpreting NSL64,[21] the Court of Final Appeal stressed:

“29. ... This makes it clear that the NSL provisions are intended to operate on the principle of convergence, compatibility and complementarity with local sentencing laws and principles which are accordingly to be given full effect, subject of course to NSL62 which gives NSL provisions priority in the event of inconsistency.

30.     Accordingly, the NSL provisions lay down a sentencing scheme and local laws operate within that framework. The courts are therefore able to draw upon a wealth of experience developed in this field, aiming to strike a balance between difference sentencing principles ....”

25.  In the present case, the local sentencing provisions for conspiracy offences, namely section 159C of the Crimes Ordinance, and the relevant principles shall operate within the sentencing framework laid down under NSL21 to achieve convergence, compatibility and complementarity between the two.

C2.    How to achieve convergence

26.  To understand how section 159C of the Crimes Ordinance and the relevant principles operate within the sentencing framework laid down under NSL21, it is necessary to first correctly comprehend both the effect of section 159C of the Crimes Ordinance and the legislative intent of the sentencing framework under NSL21, and then determine how the sentencing principles relating to section 159C of the Crimes Ordinance should operate within the sentencing framework under NSL21 to achieve convergence, compatibility and complementarity between the two.

C2.1  The effect of section 159C of the Crimes Ordinance

27.  Section 159C of the Crimes Ordinance expressly provides for the penalties for conspiracy offences:

“159C. Penalties

(1) A person guilty of conspiracy to commit any offence or offences by virtue of section 159A shall be liable on conviction on indictment —

(a) in a case falling within subsection (3) or (4), to imprisonment for a term related in accordance with that subsection to the gravity of the offence or offences in question (referred to in this section as the relevant offence or offences); …

(2) …

(3) Where the relevant offence or any of the relevant offences is an offence of any of the following descriptions —

(a) murder, or any other offence the sentence for which is mandatory life imprisonment; or

(b) an offence for which a sentence extending to imprisonment for life is provided,

the person convicted shall be liable to imprisonment for life.

(4) Where in a case other than one to which subsection (3) applies the relevant offence or any of the relevant offences is punishable with imprisonment, the person convicted shall be liable to imprisonment for a term not exceeding the maximum term provided for that offence or (where more than one such offence is in question) for any one of those offences (taking the longer or the longest term as the limit for the purposes of this section where the terms provided differ).

…”

28.  Construed contextually, the meaning of section 159C is plain.  Section 159C (1) provides that the penalty for a conspiracy offence shall be commensurate with the gravity of the “relevant offence.”  Where the “relevant offence” is an offence, including murder, the sentence for which is mandatory life imprisonment, or an offence for which a sentence extending to imprisonment for life is provided, under section 159C(3), the person convicted shall be liable to imprisonment for life.  In respect of any other offences punishable with imprisonment, section 159C(4) provides that the imprisonment term for a conspiracy offence shall not exceed the maximum term for the “relevant offence.”

29.  The foregoing interpretation of section 159C is also consistent with its legislative purpose.  Section 159C was added by the Crimes (Amendment) Bill 1995 to address the penalties for various conspiracy offences, with the fundamental principle of aligning the penalties for conspiracy offences with those for substantive offences: see paragraph 6(4) of the relevant Legislative Council Brief.  The sentence for a substantive offence is subject to its maximum term, and at the same time, it must be proportionate to the culpability of the offender.  Given that the legislative purpose of section 159C is to tie the penalties with those for substantive offences, any sentence imposed must satisfy the “maximum penalty requirement” and the “proportionality requirement.”

30.  In short, regarding the sentencing for conspiracy to commit the “relevant offence”, section 159C sets out two criteria:

(1)     The sentence must be commensurate with the gravity of the “relevant offence” (the “proportionality requirement”); and

(2)     The sentence must be subject to the maximum term for the “relevant offence”; where section 159C(3) applies, the maximum term shall be imprisonment for life (the “maximum penalty requirement”).

C2.2  The legislative purpose of NSL21

31.  In Lui Sai-yu, the appellant contended that when properly construed, the prescribed sentencing bands under NSL21 only pertain to starting points, and the lower limits are not absolute.  Therefore, having settled on the starting point within the prescribed band, the court may impose a sentence below the minimum sentence, giving full effect to applicable mitigating factors, including the appellant’s timely guilty plea.  The Court of Final Appeal found this argument untenable.

32.  The Court of Final Appeal first discussed the effect of NSL21 as follows:

“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.”

33.  The Court of Final Appeal then identified the two specified sentencing bands under NSL21, including the lower limits which are mandatory:

“64. The official Chinese text of NSL21(2) provides that if the circumstances of the offence are of a serious nature, the consequence is 『處五年以上十年以下有期徒刑』(Translator’s note: it is rendered in the English translation as ‘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, the consequence is 『處五年以下有期徒刑、拘役或者管制』(Translator’s note: it is rendered in the English translation as ‘the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction’); … It is entirely clear that, read contextually, these provisions prescribe in mandatory language the nature and length of the sentence imposed. To suggest, as Counsel for the appellant did, that they are concerned merely with establishing starting-points for the purposes of sentencing exercises is to attribute a meaning which the language cannot bear.

65. NSL21(2) sets a framework of penalty bands tied to the relative seriousness of an individual offence, prescribing a sentence within the specified range. It cannot consistently be suggested that the legislative intention is for an offence found to be ‘serious’ for the purposes of that framework should then be dealt with by a sentence falling below the prescribed range. There is nothing in NSL21 to support such a view.

66.     NSL33 militates strongly against the appellant’s argument.  As we have seen, taking proper account of the Chinese text, NSL33 makes express provision as to when cases initially classified as falling within a higher penalty band may be relocated within a lower band.  This may occur where one of the NSL33 conditions is met and 『減輕處罰』 applies (Translator’s note: it is rendered in the English translation as ‘the penalty may be reduced’). The absence of any such mechanism within NSL21 itself or in a separate provision assigning such a consequence to other classes of mitigating factors compels the conclusion that, leaving NSL33 aside, the lower limits of the prescribed bands are mandatory.”

34.  The Court of Final Appeal’s discussion on NSL33 also sheds light on the sentencing approach under the NSL:[22]

“56. The purpose of NSL33 is plain. It encourages offenders and potential offenders not to go through with an offence and to assist the authorities in safeguarding national security and enforcing the law. It provides an incentive for such actions by permitting a downward adjustment of the penalty.

…

58.     While NSL33 may thus be regarded as addressing the particular set of mitigating factors reflected in the three conditions it specifies, it differs from an ordinary sentencing exercise in one significant respect.  Our courts are not generally concerned with offences with prescribed bands or tiers of sentence related to the seriousness of the individual case.  NSL33 however operates in precisely that context and provides for the effect of its conditions being satisfied upon the tiered sentencing bands.”

As to whether the three conditions under NSL33 are exhaustive, the Court of Final Appeal held that:

“67.     The appellant seeks to argue that the three conditions capable of triggering the mitigating benefits of NSL33 are not exhaustive and that “the sentencing court may continue to rely on factors recognized under existing law as legal bases to impose a lighter penalty or to reduce a penalty” at least if such factors ‘are consistent with the purpose of NSL’.  The objective is again to submit that the Judge ought to have given full effect to the one-third sentencing discount for the appellant’s guilty plea leading to a sentence below the lower limit of the upper band set by NSL21(2).

68.     That argument cannot be accepted ... the legislative purpose of that provision is unambiguous.  As is evident from the three conditions which enliven NSL33, its purpose is to provide offenders and potential offenders with an incentive to desist from committing offences, to assist the authorities in the suppression of activities endangering national security and to facilitate law enforcement.  NSL33, construed contextually and purposively, cannot be understood as intending that such extenuating sentencing adjustments should be available in respect of mitigating factors unconnected with the clear rationale of that provision. Accordingly, the appellant’s arguments must be rejected.”

35.  It is worth reiterating that in Lui Sai-yuatparagraphs58 and 65, the Court of Final Appeal emphasized that the NSL establishes a sentencing framework, including bands and ranges, that is tied to the seriousness of individual offences, which differs from the ordinary sentencing provisions under the local laws.

36.  According to the analysis of the Court of Final Appeal, the legislative purpose of NSL21(2) is as follows:

(1)     The Article establishes two sentencing bands, the penalty ranges of which are tied to the seriousness of the offence.  In other words, it prescribes the sentencing bands and ranges commensurate with the gravity of the offence, and the court will arrive at a sentence that falls within the band of “a serious nature” or that of “a minor nature” according to the actual circumstances of the case.

(2)     The sentencing bands and ranges under the Article are mandatory. The court is required to exercise discretion within the applicable range by applying the local sentencing laws and principles to determine the appropriate sentence.  The final sentence shall not fall below the lower limit of the band. Otherwise, it would be disproportionate to the seriousness of the offence, unless NSL33 applies.

37.  In short, where NSL21(2) applies, the sentence shall be within the prescribed range of the applicable band and shall not fall below its lower limit, unless NSL33 applies.  Otherwise, the sentence would be disproportionate to the gravity of the offence and run contrary to the legislative purpose of the Article.

C2.3  How section 159C operates within the framework of NSL21

38.  Where section 159C of the Crimes Ordinance applies under the NSL, the court is required to identify the specified “relevant offence” and the sentencing framework for that offence as prescribed by the NSL to determine a sentence that satisfies both the “proportionality requirement” and the “maximum penalty requirement.”

39.  Regarding conspiracy to incite the commission of an offence contrary to NSL20, the “relevant offence” referenced in section 159C of the Crimes Ordinance is inciting the commission of an offence contrary to NSL20.  With respect to this offence, NSL21(2) has already established the sentencing bands and ranges which are commensurate with the gravity of the offence and they are mandatory.  In light of this, to satisfy the “proportionality requirement” and the “maximum penalty requirement”, the sentence for conspiracy to incite the commission of an offence contrary to NSL20 shall comply with the provisions of NSL21(2) and be within its prescribed sentencing framework, and it shall not fall below the lower limit of the applicable band, unless NSL33 applies.  At the same time, the sentence shall not exceed the maximum penalty either.  With section 159C of the Crimes Ordinance operating within the framework of NSL21 in this manner, it helps achieve convergence, compatibility and complementarity between the two.

40.  The above sentencing principle also ensures that the sentence for conspiracy to incite the commission of an offence contrary to NSL20 aligns with the sentence for an offence of incitement under NSL21 and that for a conspiracy offence under NSL30:

(1)     Both incitement and conspiracy under NSL21 are inchoate offences, and their applicable sentencing frameworks shall be consistent.

(2)     NSL30 provides[23] that conspiracy to commit an offence with a foreign country or external elements under NSL20 is punishable in accordance with the prescribed sentencing framework of the Article.  In other words, both conspiracy and substantive offences are subject to the same sentencing framework.  As it is likewise a conspiracy offence, it is entirely reasonable that the sentence for conspiracy to incite others to commit an offence under NSL20, instituted under section 159A of the Crimes Ordinance, shall also be imposed in accordance with the provision for an offence of incitement under NSL21.

C3.    Grounds put forward by the applicant

41.  Mr Shek’s main contention is that section 159C(4) makes no mention of minimum sentences, and that it is clear from the legislative materials that the legislative intent was solely to align the maximum sentences for conspiracy with those for substantive offences, without anything to do with minimum sentences.  Furthermore, there is a remarkable difference between a maximum sentence and a mandatory sentence.  Therefore, section 159C(4) was intended to give the court liberty to impose any penalty below the maximum sentence for an offence of a conspiratorial or abetting nature.  In support of his contention, Mr. Shek cited a line of English Court of Appeal cases, [24] which stated that as far as the English Firearms Act 1968 was concerned, the statutory minimum sentence for possession of firearms was not binding on the offence of conspiracy to possess firearms, but served only as a significant reference point.

42.  We find Mr. Shek’s contention untenable because:

(1)     Section 159C of the Crimes Ordinance just makes no mention of minimum sentences for the reason: as the Court of Final Appeal pointed out in Lui Sai-yu at paragraph 58, that minimum sentences are rarely laid down in the local laws.  However, this does not mean that the prescribed statutory minimum sentences can be disregarded where section 159C applies within the sentencing framework of the NSL.

(2)     This contention emphasizes the fulfilment of the “maximum penalty requirement” in sentencing, but has completely disregarded the “proportionality requirement”.

(3)     If this contention holds true, the prescribed ranges under NSL21 would only concern starting points.  As a result, even if NSL33 was inapplicable, the applicant could still receive a discount for a timely plea of guilty, and the final sentence might fall below the statutory minimum. However, such contention was rejected by the Court of Final Appeal in Lui Sai-yu.

(4)     If this contention holds true, incitement to commit the offence under NSL20 would be punishable in accordance with its provisions, whereas conspiracy to incite the commission of the same offence would not.  Given that both are inchoate offences, it would be unreasonable and illogical for their sentencing provisions to be inconsistent.  Particularly, when the circumstances of the offence of conspiracy to incite are more serious than those of the offence of incitement, it makes no sense in principle if sentencing for the latter is subject to the statutory minimum while that of the former is not.

(5)     The circumstances of the English cases that Mr Shek cited involved the English Firearms Act 1968, which are entirely different from the issues this Court is required to address.  Accordingly, they are of no reference value.

43.  In his oral submissions, Mr Shek claimed that the above principle of “convergence, compatibility, and complementarity”, in particular the point of “compatibility”, allows section 159C to operate in tandem with the provisions of NSL21.  He specifically emphasized “in tandem with”, as though section 159C could be enforced outside the sentencing framework of NSL21.  This is incorrect because the correct application of the convergence principle requires section 159C to operate within the sentencing framework of NSL21 to achieve convergence, compatibility, and complementarity between the two sets of provisions.

44.  Finally, we note that in HKSAR v Choi Wing-kit [2023] 5 HKC 170 and HKSAR v Ng Gordon Ching-hang & 46 Others [2024] HKCFI 3298 respectively, the lower courts were of the view that the sentencing ranges, including the lower limits, for the “relevant offences” specified in section 159C of the Crimes Ordinance, as laid down in the NSL, were not mandatory but for reference only.  However, the lower courts failed to thoroughly discuss or fully consider the convergence principle mentioned above or how section 159C of the Crimes Ordinance should operate within the relevant sentencing frameworks of the NSL.  Based on the above discussions, we cannot agree with this viewpoint.

D.     Are the circumstances in the present case “of a serious nature”

45.  The court’s determination of the seriousness of a case involves an assessment of the overall facts and the exercise of discretion.  Regarding the offence of incitement under NSL21, the Court of Final Appeal in Lui Sai-yu at paragraph 71 affirmed the various factors set out by this Court in HKSAR v Ma Chun-man [2022] 5 HKLRD 246 at paragraphs 74 to 76 which served to help assess the seriousness of the offence of incitement.  The factors include but are not limited to:

(1)     the context in which the offence was committed, including the date, time, location, occasion and societal atmosphere at the material time and so on;

(2)     the modus operandi, including the ways, acts, wording and media or platforms adopted;

(3)     the number of times and duration of the incitement, and whether the acts were persistent;

(4)     the scale of the incitement;

(5)     whether it was spontaneous or premeditated; if it was the latter, the scale of the premeditation and level of sophistication;

(6)     whether violence or threat of violence was involved; if yes, how imminent and serious the violence or threat was;

(7)     whether other people were involved in committing the crime together;

(8)     the group the incitement targeted, the size of the group and the potential influence on them;

(9)     whether or not the incitement actually succeeded and resulted in someone committing the offence of secession or any other offence, or how risky and imminent that this would happen;

(10)   the actual or potential influence that the offender had on society or a certain sector or area.

Although the applicant in the present case was charged with an offence of conspiracy, the circumstances of his offending were no different from those of an offence of incitement. Therefore, these factors likewise apply.

46.  Having considered the overall circumstances of the case, we are of the view that the present case is “of a serious nature”.

47.  First, the applicant committed the offence over a long period of 28 months, with obvious planning and premeditated acts.

48.  Second, at the time of the offence, Hong Kong had just experienced a series of persistent and severe violent clashes and illegal acts stemming from the “Anti-Extradition Law Amendment Bill Movement”.  The risks to national security and the rule of law remained very high.  Against this background, the applicant still persisted in committing the offence continuously over a long period of time, thereby significantly exacerbating the potential risks of endangering national security and disrupting social order.

49.  Third, the applicant utilized the internet to publish the posts in question to enhance the effect of incitement.  All six online platforms involved in the case are social media widely used by members of the public who were the targets of incitement.  The evidence also shows that the platforms in question had thousands of followers, not a small number indeed.

50.  Mr Shek cited several defamation cases in support of his contention that members of the public only retain a fleeting impression of remarks made on the internet and social media.  He seemed to be suggesting that using the internet to publish inciting remarks does not necessarily aggravate culpability. However, the issues involved in those civil cases concerned how online remarks should be interpreted from the perspective of a user and, as a result of which, whether such remarks constituted defamation or other civil wrongs.  These issues are entirely different from those the court is required to consider in an offence of incitement.  Moreover, the Court of Final Appeal and this Court have repeatedly pointed out that given the extensive reach of the internet, the abuse of social media to incite others to commit crimes does aggravate the offender’s culpability: see HKSAR v Chan Yau-hei (2014) 17 HKCFAR 110 at paragraph 89; Secretary for Justice v Yu Ka-kui [2020] HKCA 1019 at paragraph 28; and in Ma Chun-man at paragraph 83(4).  Mr Shek’s contention is just untenable.

51.  Fourth, the posts in question incited the use of various methods to achieve the purpose of the offence.  Some of the posts advocated using violent means to overthrow the Chinese government and the SAR government.  Some proposed substantive activities, such as launching an online crowdfunding campaign to raise “military funds” to achieve Hong Kong’s independence and organizing a demonstration outside the British Consulate General in Hong Kong. Some promoted initiating an online petition to the White House, demanding that the United States terminate the Hong Kong Policy Act and the Sino-British Joint Declaration, and that the United States and NATO send troops to occupy Hong Kong.  In summary, the applicant advocated the use of violence, raised funds for the purpose of Hong Kong’s independence, and even promoted seeking help from foreign or external forces to achieve the goal of “the independence of Hong Kong”, thereby aggravating his culpability.

52.  Mr Shek complained that the trial judge overlooked the fact that the plan of HKIP was fanciful and politically infeasible, and the concepts or actions advocated in the posts in question hardly attracted any interest.

53.  However, the primary objective of the offence of incitement is to prevent crime.  Generally speaking, whether the remarks in question have been put into practice and how the public have reacted to them are irrelevant; the offender’s culpability may remain considerably serious.  Conversely, if the remarks in question had attracted many people’s attention, or even garnered support from a lot of people, his culpability would even be more serious: see Divin and McGinlay v HM Advocate [2013] JC 259 at paragraph 20; Ma Chun-manat paragraph 85(4).

54.  Furthermore, when the applicant committed the offence, Hong Kong was facing very high risks to national security and the rule of law.  He nevertheless persisted in promoting online the separation of Hong Kong from China by means of various social media platforms over a long period of time, and he also proposed certain substantive actions to advance the independence of Hong Kong.  Notwithstanding the slim chances of success for part of the proposals, his overall culpability remained gravely serious.

55.  Fifth, the applicant not only conspired with others, but already took certain substantive actions to incite others to commit secession.

56.  Sixth, under the management of the applicant, the platforms in question not only failed to remove the previous posts after the NSL came into effect, they even proceeded with publishing 35 more posts to persistently carry out acts of incitement.  That was blatant defiance of the law and it exacerbated the risks of stirring up secessionism and other unlawful acts.

57.  We are of the view, having regard to the overall circumstances of the case, that the trial judge’s finding that the circumstances in the present case were “of a serious nature” is correct, and the starting point of six and a half years’ imprisonment he adopted was reasonable and not manifestly excessive.

E.     Whether the trial judge adequately considered the applicant’s role and culpability

58.  Mr Shek urged that even in a case of conspiracy, the court is still required to consider the varying degrees of participation among the defendants to impose the appropriate sentence: for example, R v Cooke [2017] EWCA Crim 1272 at paragraph 15; HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 at paragraph 70.  However, the trial judge failed to consider or adequately consider the applicant’s personal culpability, particularly his account of his role under caution, which included: the media in question were jointly used by a number of people; he did not participate in setting up the domain names; he had no connection with the Facebook account of HKIP; the Twitter account of HKIP was set up seven years ago by someone he did not know and was jointly used by a number of people (the applicant only knew the cypher of one of them and had no information about the others); he had no connection with the Instagram account of HKIP; he was not involved in the management of the Telegram channel of HKIP and had no authority to delete or change any of its content; he joined the Telegram group of HKIP for casual conversations and was subsequently invited to become an administrator for the sole purpose of deleting advertisements and spam messages, and following up on the requests of other members.  The name of the last medium was unrelated to the concept of Hong Kong’s independence; and he had lent his account to someone whose identity he had already forgotten.  Mr. Shek argued that, in arriving at a finding without hearing the evidence, the court is required to impose a sentence based on the facts of the case most favourable to the applicant: see Sentencing in Hong Kong (11th Ed) §21-36.  Therefore, the trial judge should have accepted the applicant’s account as mentioned above.

59.  Mr. Shek complained that the trial judge erred in stating that “according to the laws of Hong Kong, his culpability, as a conspirator, is the same as that of the other co-conspirators” and that “as for the 42 posts, whether they were personally authored or uploaded by the defendant is irrelevant”, without considering the applicant’s role and his own culpability.

60.  We find Mr. Shek’s arguments untenable for the following reasons:

(1)     As we emphasized in HKSAR v Tse Tak-lai [2021] HKCA 909 at paragraphs 117–118, 127, 132 and 135, in a case of conspiracy, an element of the offence is the defendants’ agreement to commit the crime, not the “overt acts” performed by individual co-conspirators during the conspiracy. Generally speaking, the insignificant role played by individual co-conspirators is not a mitigating factor.  However, if a co-conspirator plays an active, affirmative and extensive role, his culpability will be aggravated.  The court must take into account the overall gravity of the offence beforearriving at the appropriate sentence.  In the present case, the trial judge was absolutely correct in applying the relevant principles.

(2)     In sentencing, the trial judge had repeatedly referred to the applicant’s account in his cautioned statement, including the part reflecting his personal culpability,[25] and he also analyzed whether the applicant had “made a truthful confession of his criminal acts” and pointed out that the applicant “basically denied any involvement in the alleged acts”.[26]  Thus, the trial judge had clearly given full consideration to the applicant’s account of his personal role under caution, and just did not accept his account.  Mr Shek contended that the trial judge had to conduct a “Newton hearing” before rejecting the applicant’s account in his cautioned statement. That is an oversimplification of the matter.  Whether a “Newton hearing” is required depends on the actual circumstances.  In the present case, the trial judge’s approach to the applicant’s account under caution is beyond reproach.

(3)     The applicant was the sole defendant in the present case.  There were no other co-defendants against whom his culpability could be compared.  Moreover, as mentioned above, the circumstances of the present case were fairly serious. Even if his account under caution were accepted, the extent of his participation and his culpability were far from insignificant.

F.     Conclusion

61.  Based on the discussions above, none of the applicant’s grounds of appeal are tenable.

62.  We are of the view that having regard to the applicable sentencing principles and the overall circumstances of the case, the trial judge’s imposition of a sentence of five years’ imprisonment on the applicant is neither wrong in principle nor manifestly excessive.  Accordingly, the applicant’s application for leave to appeal is refused.

Translated by the Court Language Section of the Judiciary and vetted by  Mr P Y Lo, Barrister-at-law.