香港特別行政區 訴 Best Pencil (Hong Kong) Ltd 及其他人 （判刑） [2025] 2 HKC 1146, [2024] HKDC 1609 (Jay Koon)
Audrey Eu SC, David Ma, Jay Koon, Allison Wong and Denis Or represented the 2nd and 3rd defendants in 香港特別行政區 訴 Best Pencil (Hong Kong) Ltd 及其他人（判刑） [2025] 2 HKC 1146, [2024] HKDC 1609.
The 1st defendant was a limited company incorporated in Hong Kong and the registered owner, printer and publisher of the online media Stand News. The 2nd defendant was Stand News’s chief editor at all material times up to 1 November 2021. The 3rd defendant was Stand News’s deputy editor at all material times and took up the position of acting chief editor after 1 November 2021 and performed the functions of the chief editor. The three defendants were charged with conspiring among themselves and with others, between 7 July 2020 and 29 December 2021 (both dates inclusive), to publish and/or reproduce seditious publications. The three defendants were convicted after trial on 29 August 2024 ([2025] 2 HKC 1031, [2024] HKDC 1430). The court proceeded to sentence the defendants.
Held, sentencing the 1st defendant to a fine of $5,000, the 2nd defendant to 21 months’ imprisonment and the 3rd defendant to a term of imprisonment that allowed his immediate release:
(1) The three defendants were not convicted for carrying out their reporting responsibilities as journalists. The Court did not accept as a mitigating factor that the 2nd and 3rd defendant were convicted because they carried out their reporting duties of journalists (paras 31-34).
(2) The 2nd and 3rd defendants did not breach the law inadvertently. The appellate court had held that in Hong Kong the elements of the seditious intention offences did not include inciting others to use violence. The legislation had already provided guidance on what journalists may publish or what they may not publish, the main point clearly bearing on the intention of the publisher. Foreign caselaw provided guidance on the functions, duties and responsibilities of editors. Anyone who worked in journalism would know that the primary responsibility of journalism was telling the truth, not lies or half-truth. Where a comment or an opinion was supported by true facts or by facts verified by the publisher with his best endeavours to be true, it would naturally have an ‘objective basis’. If a person, including a journalist, intended to publish an article which criticised the government and/or the regime, he may first consider what his intention was in publishing the article. If he was to smear and vilify the Central Authorities and the HKSAR Government with the intention of seriously undermine the legitimacy, recognition or authority of the Central Authorities, the HKSAR Government and its institutions, the HKSAR’s constitutional order or status and the HKSAR’s judicial system, or intended 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, then he of course had to be liable for the offence. On the other hand, if his intention fell under s 9(2), and instead of smearing, vilifying, spreading hatred or fear, his criticism or opinion was based on facts confirmed to be true by proper verification and authentication, and he maintained a faithful and impartial attitude in presenting, describing and recounting his comments or opinions in compliance with the code of ethics of journalism, then even if his criticisms were strong and sharp, he would not be guilty of sedition. Fei Yi Ming v R (1952) 36 HKLR 133, [1952] HKCU 13 considered (paras 35-39).
(3) During the period of the offence, Stand News, acting through the 2nd and 3rd defendants, was definitely not a pure practitioner of journalism. Stand News canvassed for the person interviewed in article A1, where the only reasonable and irresistible inference was that Stand News and the 2nd defendant agreed with the seditious words of that person and intended to publish those seditious words. Article A16 claimed, without any objective basis, that the academic freedom of the Chinese University of Hong Kong was threatened and need to be protected, and criticized the police law enforcement actions by using untrue facts and glorified the acts of rioters. Stand News’s editorial decision was to intend to re-display through article A16 the protest slogans and rekindle the violent protests which had already been cooled down, thereby bringing into public hatred against the HKSAR Government and the police. From these matters, it could be seen that Stand News and the 3rd defendant were not discharging their responsibility of providing news coverage as media but published seditious articles with intent. From Stand News’s editorials and the blog posts, it was shown that the information disseminated was that the Central Government was a totalitarian government, the HKSAR Government was the puppet of the Central Authorities, and the police and judges were bouncers of the regime. The information 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 and the HKSAR Government and the constitutional order. The articles found to have seditious intention fully helped Stand News in promoting the germination and growth of ‘localism’ in Hong Kong. The three defendants were not engaging themselves in genuine journalistic work; they were participating in the so-called struggle at the time. The three defendants had committed a very serious crime. The relevant conspiracy lasted about one year and five months, and even if one focused on the 11 articles found to have seditious intention, the time of their publications was largely during the time when the more than half of the Hong Kong community were most distrustful of the Central Authorities and the HKSAR Government, the police, and the Judiciary. Given that Stand News had about 1.6 million followers, the seditious publications must have caused significant harm to both the Central Authorities and the HKSAR Government, as well as the Hong Kong inhabitants, notwithstanding that it was difficult to quantify such harm. In light of the seriousness of the offence, the only appropriate sentencing option was imprisonment. Article 33 of the HKNSL did not apply to the 2nd defendant’s situation. The 2nd defendant did not voluntarily discontinue the commission of the offence in the course of committing it. His act of removing some articles was only to reduce the risk of law enforcement taking action against him and Stand News (paras 41-51).
[The above is excerpted from the headnote to the report in HKC.]
