HKSAR v Cho Suet Sum Chloe [2022] 3 HKC 1, [2022] HKDC 119
Steven Kwan, with Charlotte Chan, represented the 1st defendant in HKSAR v Cho Suet Sum Chloe [2022] 3 HKC 1, [2022] HKDC 119.
The 1st and 2nd defendants pleaded guilty to one charge of conspiracy to print, publish, distribute, display or reproduce seditious publications, contrary to ss 10(1)(c), 159A and 159C of the (hk) Crimes Ordinance (Cap 200). The admitted facts revealed that upon 1st defendant’s request, the 2nd defendant, a 16-year-old Form 4 student, agreed to and designed a double-sided leaflet advocating for Hong Kong independence (Leaflet). The 1st defendant printed, and subsequently displayed, published and distributed over 100 hardcopies of the Leaflet at various places in Wanchai. A Newton Hearing was conducted due to 1st defendant’s non-admission that the publications had an intention to incite persons to violence, though she accepted that they had the seditious intention otherwise specified in the particulars of the charge.
Held, sentencing the 1st defendant to 13 ½ months’ imprisonment and sentencing the 2nd defendant to a Rehabilitation Centre order:Whether intention to incite persons to violence
(1) All the circumstances of the case surrounding the publication of the Leaflet should be considered, including the audiences addressed, the state of public feelings, and the place and mode of publication, when determining whether it had an intention to incite persons to violence. In view of the contents of the Leaflet, the impossibility of the Central People’s Government to permit the changes advocated, the 1st defendant’s intention, and all other circumstances, the prosecution had proved beyond reasonable doubt that the Leaflet had an intention to incite persons to violence. R v Aldred (1909) 22 Cox CC 1 applied (paras 46-47, 49-57).
Sentencing
(2) A prohibited act of sedition including the present offence qualified as an offence endangering national security. In the present case, the defendants’ involvement in a conspiracy to incite people to procure Hong Kong independence through violence was very close to incitement to secession under art 21 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region. The same sentencing approach with Tong Ying Kit had to be adopted, namely that the sentence much achieve the purposes of punishment and deterrence, both generally on the community as a whole and specifically on the individual in question. HKSAR v Ng Hau Yi Sidney [2021] 6 HKC 822 followed. HKSAR v Tong Ying Kit [2021] 5 HKC 100 considered (paras 70-73, 78).
(3) Considering the 1st defendant was the prime mover of the offence, recruiting the 2nd defendant, a 16-year-old student into the conspiracy, the 1st defendant’s involvements in the printing, production and distribution of hardcopies of the Leaflet and her intention, the scale of distribution and execution of the conspiracy, the appropriate starting point of the 1st defendant’s sentence was 18 months’ imprisonment. Since a Newton Hearing was held and a finding was made against her, the 1st defendant should not be given the usual one-third discount, and the appropriate discount was 25%, rendering a sentence of 13 ½ months’ improvement. Wallace-Johnson v R (1940) AC 231; Hsaris Fathillah Mohamed Ibrahim v Pendakma Raya dan satu lagi rayuan [2019] 7 MLJ 14; R v Timothy Selwyn[2007] NZCA 123; and Fei Yi Ming v R (Case No 7 of the April 1952 Criminal Session) considered (paras 78, 80-81).
(4) Considering that on one hand the sentencing on the 2nd defendant should be commensurate with the seriousness of the offence and on the other hand the young age of an offender was always a mitigating factor, detaining him in a Rehabilitation Centre for appropriate training, counselling and after supervision would be beneficial to his rehabilitation and reformation. Secretary for Justice v SHY [2021] 1 HKLRD 682 ; [2020] HKCU 3692; and Secretary for Justice v SWS [2020] 5 HKC 696 considered (paras 82-84).
[The above is excerpted from the headnote to the report in HKC.]
