香港特別行政區 訴 Best Pencil (Hong Kong) Ltd 及其他人 （裁決） [2025] 2 HKC 1031, [2024] HKDC 1430 (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（裁決） [2025] 2 HKC 1031, [2024] HKDC 1430.
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, namely publications with the following intentions: (a) bringing into hatred or contempt or to excite disaffection against the Central Authorities or the Government of the HKSAR; (b) exciting inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established; (c) bringing into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong; (d) raising discontent or disaffection amongst inhabitants of Hong Kong; (e) inciting persons to violence; and (f) counselling disobedience to law or to any lawful order. The prosecution relied on 17 articles published on Stand News within the said period and contended that each article had seditious intention. The articles included: (i) profile interviews of three candidates in the 35+ primary election and one blog article, which the prosecution contended that the three candidates each promoted anti-government, anti-Central Authorities political ideologies in the interview, ie seizing control of the Legislative Council to threaten the Government in order to achieve their political objectives, and the author of the blog criticised the prosecution of the 35+ primary election case as absurd and claimed that the Communist Party of China abused power, advocated the unity of Hong Kong people in fighting against the Government, so that this group of articles clearly caused the bringing into hatred, etc against the Central Authorities or the HKSAR Government referred to in s 9(1) of the Crimes Ordinance (Cap 200) and had seditious intention; (ii) six blog articles, whose contents were all concerned with the enforcement action and legal proceedings under the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (HKNSL), and which the prosecution contended that the articles discredited the police, played up the regime as suppressing dissidents and encouraged readers to use different tactics to undermine the governance of the Central Government, preserve the strengthen and broaden the battlefront, or alleged that the HKNSL and other laws had been abused and had become political tools to oppress the public, so that this group of articles smeared and attacked the relevant law enforcement actions, prosecutions and legal proceedings and could bring residents into hatred and contempt of the HKSAR Government, the police and the HKNSL and therefore had seditious intention; (iii) three profile interviews and two blog articles, in which four of the interviewees and authors fled overseas after the implementation of the HKNSL and advocated sanctions against the Central Authorities and the HKSAR Government and whose contents of accusations, rumours, declaration and vilification made them clearly to bring hatred, etc against the Central Authorities or the HKSAR Government under s 9(1) and had seditious intention; and (iv) one interview with two unnamed interviewees claiming to be alumni of the Chinese University of Hong Kong whose contents glorified the acts of rioters and discredited the legitimate law enforcement of the police by the interviewees recalling the riot in the campus of the Chinese University of Hong Kong on 12 November 2019, and one news report on Chow Hang Tung receiving the Distinguished Person for Advocating Democracy in China Award and her acceptance speech, in which she implied that the law enforcement actions caused by the Anti-ELAB incident in 2019 and the policies of enactment of the HKNSL were acts of the Communist Party of China in the totalitarian suppression of a democratic social system and the law, undermining freedoms and openness of society, thus bringing hatred against the Central Authorities or the Hong Kong Government, so that this group of articles had seditious intention. These articles were all published in the website and social media pages of Stand News operated by the 1st defendant. The prosecution alleged that the 2nd defendant was one of the directing minds and wills of the 1st defendant and also the chief editor of Stand News, and he knew that the articles had seditious intention and decided, approved, arranged and/or assisted in their publication. The prosecution also alleged that the evidence indicated that the 1st defendant’s other directing mind and will and ultimate boss was its director Mr Tsoi. The 3rd defendant on the other hand knowingly assisted the 2nd defendant and later was the acting chief editor of Stand News and carried out the same work of the 2nd defendant. The 1st defendant did not send a director, shareholder or legal representative on its behalf to attend court. The 2nd and 3rd defendants pleaded not guilty to the charge.
Held, finding the 1st, 2nd and 3rd defendants guilty of the offence charged:
(1) The 1st defendant was absent at trial. The Court entered its plea as not guilty and exercised its discretion to allow the prosecution to adduce evidence in the absence of the 1st defendant. The absence of the 1st defendant was only abandonment of its right to participate in the trial and had no relation to whether it was or was not guilty and was not a ground for drawing any adverse inference against it. 香港特別行政區 訴 關偉強 [2012] HKCU 1271, (CACC 259/2011, 高等法院首席法官張舉能, 高等法院上訴法庭法官張澤祐, 高等法院上訴法庭法官袁家寧, 2012 年6 月12 日, 未經彙報) followed (paras 10-18).
(2) The allegation in the present case involved conspiring to commit multiple and successive breaches of s 10 of the Crimes Ordinance (Cap 200) . The time limit for prosecution was calculated starting from the date of the end of the offence. Accordingly, the prosecution was not brought out of time. The object of s 159D(1) of the Crimes Ordinance was to prevent the prosecution from making use of a conspiracy charge for an offence for which the time limit for prosecution had expired. The conspiracy subject to the restriction was limited to an agreement to commit an offence for which the time limit had expired. The content of the conspiracy in the present case was the continuing publication of seditious articles on Stand News, which was distinct from a conspiracy to publish the 17 articles. Even if some of the 17 articles were published beyond the six month period prior to 29 December 2021, s 159D did not preclude the prosecution from prosecuting the conspiratorial agreement that was the subject of the present case. Also, the 17 articles were overt acts under the conspiratorial agreement and could be used to prove the conspiratorial agreement. The prosecution may adduce evidence in respect of the 17 articles. HKSAR v Lai Chee Ying [2023] HKCFI 3337, [2023] HKCU 5345 applied (paras 20-30).
(3) The defence’s application for permanent stay of proceedings was dismissed. The reason of the prosecution’s delay in disclosure of the 557 articles was that the police made an error of judgment when they submitted the articles to the Department of Justice. The evidence was not such as to indicate that the relevant officers of the squad of the police deliberately failed to disclose or delayed the disclosure of all the relevant materials. The defence was given sufficient time to examine the relevant documents after the prosecution made disclosure. The delayed disclosure had not caused the defence such serious harm so that a fair trial would become impossible. Although the police had not kept the articles other than the 557 articles that the police officers had also examined, that had not caused unfairness to the trial. There was nothing improper in the prosecution opening. The defence was not able to establish that due to the prosecution’s non-disclosure and/or delayed disclosure of information, the defence would not have a fair trial. The defence was also not able to establish that allowing the prosecution to continue would result in an abuse of process by the prosecution or other valid ground justifying a permanent stay of proceedings. 香港特別行政區 訴 韦德恩 [2024] HKCFI 799, [2024] HKCU 1038; and HKSAR v Chan Keen [2021] HKCFI 3546, [2021] HKCU 5710 considered (paras 44-48).
(4) For the offence of publishing seditious publication under s 10(1)(c) of the Crimes Ordinance, the publisher must have knowledge of the contents of the publication and the underlying intention to publish. Apart from that, the prosecution must establish that the publisher had the mens rea required by that provision. Offences of seditious intention were offences of specific intent. The specific intent was that the publisher, at the time of the publishing of the seditious publication, intended to engage in sedition or knowingly took the risk being reckless to the consequences of sedition. The appropriate balance regarding the specific intent for the offence of publishing seditious publication was to require the prosecution to prove either that the publisher, at the time of publishing the seditious publication, had the seditious intentions of s 9(1) (intend to commit sedition) or that the publisher knew at the time of publishing that the seditious publication had the seditious intentions of s 9(1) but was reckless as to the consequences and still published them (reckless as to consequences of sedition) so that the publisher may be found guilty of the offence. The publisher did not need to have to have exactly the same seditious intention as that of the seditious publication; it sufficed for him to have one seditious intention in common. The alleged seditious intention not only had to be one or more of the seven intentions stated in s 9(1) but also that the alleged intention was not within any of those stated in s 9(2). Under s 9(2), pointing out errors in governmental measures, constitutional system, legislation or administration of justice and even urging Hong Kong residents to change by lawful means matters established by law with the purpose of rectifying the error or defect did not constitute seditious intention. On the other hand, s 9(2) clearly did not apply to speech lacking an objective factual basis but having the intention of seriously undermining the authority of the Central Authorities or the HKSAR Government. When the Sedition Ordinance 1938 was enacted to provide for the statutory offences of seditious intention, the colonial government at the time did not consider that inciting violence or disturbance or disorder was a necessary element of the statutory offences of seditious intention. In light of the legislative background at the time, it was not possible for the Sedition Ordinance 1938 to have an implied provision to make intention to incite violence or riot or disorder to be a necessary element of the offences of seditious intention. When a speech was assessed as having seditious intention, the relevant actual circumstances must have been taken into account and the speech must have been deemed thereunder to be potentially detrimental to the national security and had to be stopped. Where the relevant speech or publication was found to have the seditious intention under s 9(1), there was no need to separately consider whether the speech constituted any real risk to national security. When a speech, in the relevant context, was assessed to be causing potentially detrimental consequences to national security, and having the intention of seriously undermining the authority of the Central Authorities or the HKSAR Government, etc and thus had to be stopped, the conviction would as a matter of course be in line with operational proportionality and no further consideration would be required. Where the court applied provisions that were constitutionally valid when considering whether the defendant was guilty, there was no need to consider separately whether the conviction was consistent with the principle of operational proportionality. HKSAR v Tam Tak Chi [2024] 3 HKC 593, [2024] 2 HKLRD 565, [2024] HKCA 231 (CA); HKSAR v Tam Tak Chi [2024] 6 HKC 232, [2024] HKCFA 25 (CFA); HKSAR v Ng Ngoi Yee & Ors [2024] 6 HKC 136 ; (2024) 27 HKCFAR 434, [2024] HKCFA 24 followed. Kulemesin v HKSAR [2014] 1 HKC 1, (2013) 16 HKCFAR 195 considered. HKSAR v Lai Man Ling [2022] 6 HKC 615, [2022] 4 HKLRD 657, [2022] HKDC 981 not followed (paras 148-186).
(5) Regarding whether the 17 articles had seditious intention, the actual circumstances, including the context of the relevant time period, must be considered. In considering the social context of the material time, an appropriate starting point was the anti-ELAB movement which happened in 2019. Between June 2019 and May 2020, there were 1,000 odd individual protest activities, involving more than 14 million protestors. Even if those people did not use any violent during the protests, they must have had various grievances against the police, the HKSAR Government and/or the Central Government. After the promulgation and implementation of the HKNSL, the grievances among some or all of them would not automatically disappear. They were all likely targets of sedition. During this period of intensely heated political atmosphere, extremely serious rifts developed within society. People’s trust in the Central Government changed drastically in 2019. When the HKU Public Opinion Programme conducted its opinion poll in March 2019, the Government should not have formally introduced the Amendment Bill into the Legislative Council but that matter had already caused greater controversy in society. When the legislative process formally commenced in May and June, there occurred in the community large scale and continued processions, assemblies, demonstrations and riots, etc. Notwithstanding that the Government announced in mid-June suspension of the legislative amendment and withdrew the amendment bill in September, the protestors raised other demands. The opinion poll conducted between 15 and 20 August 2019 indicated that the people’s trust in the Central Government dropped to a negative net value of -39.9% and the result of the poll between 17 and 19 February 2020 was that the negative net value of trust in the Central Government expanded to -43%, which meant that not less than four persons in ten persons did not trust the Central Government. During the time of the occurrence of the alleged offence and the times before and after it, the percentage of Hong Kong people who distrusted the Central Government was 30%, 40%, 50% or 60% of the population. No matter what the percentage was, even assuming that the population of Hong Kong at the time was only 7 million (and the actual figure was much higher), the number of people who distrusted the Central Government was between over 2 million to over 4 million. These people also must distrust the HKSAR Government, because they must have regarded the HKSAR Government as an extension of the Central Government. When nearly 60% of Hong Kong people distrusted the Central Government, they must have had negative views of the Central Government regardless of what the reasons were and regardless of whether the reasons were justified. With such a mentality, they were naturally prone to accept any negative information and criticism of the Central Government and they would, by reason that a majority of people also had the same sort of thinking, also mutually reinforce their negative views the Central Government, thinking that their own views were completely correct and this would be difficult to change. The government’s legitimacy and credibility was an important factor in social cohesion and solidarity. If a large number of people distrusted the Government, it would naturally give rise to conflicts and escalate confrontations between the Government and the people. This would automatically lead to social division. In addition, when people did not have trust in the Government, they were more likely to harbour prejudices and negative assumptions. They might turn distrust into suspicions and accusations against the Government, interpreting normal or legitimate conduct of the Government as suspicious or problematic, even when they lacked evidence or solid evidence to support their accusations. In the absence of trust from the people, it would be all too easy for the Government to become the target of disinformation or rumour attacks. This was because people who distrusted the Government were more inclined to believe in the assumption that the Government was guilty. Another background information that must be borne in mind was that Stand News was regarded between 2019 and the time it ceased operation as the most credible online media used by almost all young people. R v Aldred (1909) 22 Cox CC 1 followed (paras 202-267).
(6) Of the 17 articles relied on in the prosecution’s case, 11 had seditious intention, namely A1, A4, A5, A7, A10, A11, A12, A13, A14, A15 and A16. They were seditious publications (paras 269-383).
(7) In determining whether the three defendants had seditious intention, the factors that the court may consider may include Stand News’s source of funding, the shareholders’ political background, editorials, published articles, publications and personnel appointments. Stand News’s establishment, its ‘Launch Statement’ and its trust arrangement indicated that the 2nd defendant, Mr Tsoi and others operated Stand News on behalf of the anonymous funders, with the object of supporting and promoting ‘localism’ for Hong Kong’s ‘local autonomy’. From the background of the inception of Stand News, its ‘Launch Statement’, its three editorials and its paper publication, the political philosophy of the online media was ‘localism’, its media line was to support and promote Hong Kong ‘local autonomy’, and it had even become a tool for smearing and vilifying the Central Authorities and the HKSAR Government during the anti-ELAB period (paras 398-485).
(8) The 2nd defendant had knowledge and approved of the seditious intention of the articles found to have seditious intention, and offered Stand News as the publishing platform to incite hatred towards the Central Authorities or the HKSAR Government, to excite Hong Kong inhabitants to attempt to procure the alteration, otherwise than by lawful means, of matters established by law and to incite hatred towards the administration of justice. In any event, the 2nd defendant had at least been reckless about the consequences of seditions. The 2nd defendant had the mens rea for s 10(1)(c) of the Crimes Ordinance (para 486).
(9) Article A16 was approved for publication by the 3rd defendant. Having considered the line that Stand News took, the 3rd defendant’s speech in support of the anti-ELAB movement when appeared in the forum summit for online media in the capacity of deputy chief editor, the act of embedding video clips that showed again slogans of the protests and the persistence in publishing Article A16 despite the complaint letter from the police about it being misleading and biased, the 3rd defendant had knowledge and approved of the seditious intention of the article, and had offered Stand News as the publishing platform to incite hatred of the Central Authorities or the HKSAR Government and to incite hatred towards the administration of justice. In any event, the 3rd defendant had at least been reckless as to the consequences of seditions. The 3rd defendant had the mens rea for s 10(1)(c) of the Crimes Ordinance (para 487).
(10) The 1st defendant employed the 2nd defendant and the 3rd defendant as the chief editor and the acting chief editor respectively for the production and publication the relevant articles on behalf of the 1st defendant. Therefore when the 2nd defendant and the 3rd defendant published those articles within the scope of their employment, that was equivalent to the 1st defendant publishing those articles and their intentions amounted to the 1st defendant’s intentions. As the 1st defendant was Stand News’s proprietor, printer and publisher, by virtue of s 15 of the Registration of Local Newspapers Ordinance (Cap 268), the 1st defendant was also presumed to have published the articles (para 488).
(11) Judging from Mr Tsoi’s invitation of the 2nd defendant to join Stand News as chief editor, his knowledge of the contents of the publications it published and his approval of the 2nd defendant’s decisions regarding the publishing of publications (including the publishing of the seditious publications found above), the only reasonable inference was that Mr Tsoi, on behalf of the 1st defendant, had an agreement with the 2nd defendant on the publications published by Stand News, which was the conspiratorial agreement referred to in the charge of the present case of publishing seditious articles on Stand News continuously. Upon the 2nd defendant’s departure, the 3rd defendant took over, a matter which must have had the agreement and approval of Mr Tsoi. And Mr Tsoi’s agreement must be same as what he had with the 2nd defendant; he had the same agreement with the 3rd defendant on the publications published on Stand News. In other words, when the 3rd defendant took over, he joined the conspiratorial agreement above between Mr Tsoi and the 2nd defendant (paras 489-492).
[The above is excerpted from the headnote to the report in HKC.]
