HKSAR v Tam Tak Chi (譚得志) [2024] 2 HKLRD 565, [2024] HKCA 231

Philip Dykes SC, Jeffrey Tam and Ernie Tung represented the applicant in HKSAR v Tam Tak Chi (譚得志) [2024] 2 HKLRD 565, [2024] HKCA 231.

D was charged, inter alia, with seven charges of uttering seditious words to the public contrary to s.10(1)(b) of the Crimes Ordinance (Cap.200) (the CO) (the Sedition Charges). The words that he used which were said to be seditious included the slogan “光復香港·時

代革命” translated as “Liberate Hong Kong·Revolution of Our Times” (the Slogan); and the seditious intentions involved were those contained in s.9(1)(a), (b), (d) and (g) of the CO. He was convicted in the District Court of all the Sedition Charges together with, inter alia, three charges under the Public Order Ordinance (Cap.245) (the POO) involving unauthorised assemblies and disorderly conduct; and was sentenced to a total of 40 months’ imprisonment. D sought leave to appeal against conviction of the Sedition Charges and the sentences for both the Sedition Charges and the charges under the POO. In relation to the application on conviction, D argued, inter alia, that: (i) the Sedition Charges must be tried in the Court of First Instance and the District Court had no jurisdiction in hearing the charges because the offence was an indictable offence; and (ii) the offence was unconstitutional as it was not prescribed by law and constituted a disproportionate restriction to freedom of expression guaranteed under art.27 of the Basic Law and art.16 of the Hong Kong Bill of Rights.

Held, refusing leave to appeal against conviction and sentence and dismissing the appeals, that:

Application for leave to appeal against conviction 

Whether the District Court had jurisdiction over the Sedition Charges 

• (1) After tracing the legislative history and on a proper interpretation, the Sedition Ordinance 1938 had created new statutory offences of sedition and had impliedly displaced the common law offence. Sedition now provided for in the CO was a statutory offence and not a common law offence (Fei Yi Ming v The Crown (1952) 36 HKLR 133 applied). (See paras.63-75, 78-82.)
• (2) The statutory offence of sedition under s. 10 of the CO was a summary offence pursuant to s.14A of the Criminal Procedure Ordinance (Cap. 221). Article 41(3) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (the NSL), which provides that cases concerning offences endangering national security shall be tried on indictment, did not seek to change an offence under s.10 of the CO (s.10 offence) into an indictable offence. The primary legislative intention of the NSL was for it to operate in tandem with the laws of the HKSAR in safeguarding national security, seeking convergence, compatibility and complementarity with local laws. NSL 41(3) did not have the effect of upsetting the current statutory regime for trial of a summary offence of endangering national security. A s.10 offence was an offence endangering national security within the meaning of the NSL, and remained a summary offence and the District Court may try it upon a transfer under s. 88 (1)(b) of the Magistrates Ordinance (Cap. 227) (HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, HKSAR v Ng Hau Yi Sidney (2021) 24 HKCFAR 417 applied). (See paras.83-85, 88-89.)

Whether intention to incite violence a necessary ingredient of the statutory offence of sedition 

• (3) The legislative history of the Sedition Ordinance 1938 and the CO made it clear that as a matter of interpretation, an intention to incite violence was not a necessary element of the statutory offence of sedition, except s.9(1)(f) of the CO. (See paras.81-82, 98.)
• (4) Whether an intention to incite violence should be incorporated as an element of an offence in a given criminal code must depend on its actual provisions to be interpreted by reference to the specific legal and social landscape in which it existed. Further, the doctrine that “a statute is always speaking” was applicable only if it would be consistent with the legislative intention. Incorporating an intention to incite violence in ss.9 and 10 of the CO would be wholly against its legislative intention, hence not permissible (Attorney General of Trinidad and Tobago v Vijay Maharaj [2023] UKPC 36 distinguished). (See paras.96-99.)

Constitutional challenge — “Prescribed by law”

• (5) Section 9, and consequently s.10, of the CO satisfied the “prescribed by law” requirement. Seditious intention had to be broadly framed to encompass a myriad of situations that may arise in different and changing circumstances at different times. The offences must be flexible enough to cope with the change in time and circumstances, such as societal evolution or political climate. The definitions for seditious intention in s.9 had a sufficiently and clearly formulated core to enable a person, with advice if necessary, to regulate his or her conduct so as to avoid liability for the offence (HKSAR v Fong Kwok Shan Christine (2017) 20 HKCFAR 425 applied). (See paras.118–122.)
• (6) The words complained of, that is, “hatred”, “contempt”, “disaffection”, “discontent”, “feelings of ill-will and enmity”, were ordinary language. They aimed at prohibiting words which had the intention of: (i) seriously undermining the legitimacy or authority of the Central People’s Government, the HKSAR Government, and their institutions; the constitutional order or status of the HKSAR; and the administration of justice in Hong Kong; and (ii) seriously harming the relationship between the Central People’s Government or the HKSAR Government with Hong Kong inhabitants; and the relationship among Hong Kong inhabitants (See para.123.)
• (7) Section 9(1) had to be read together with s.9(2) which set out four circumstances in which there was no seditious intention and provided further clarity in differentiating between lawful and unlawful speeches. (See para.124.)
• (8) The relevant case law also offered to the public judicial guidance which they may consult to avoid engaging in conduct which was likely to be held to be seditious. (See para.125.)
• (9) Section 9 of the CO was not rendered legally uncertain for not containing an intention to incite violence other than s.9(1)(f). The Strasbourg jurisprudence did not contain any principle that a restriction on freedom of expression could only be justified (in terms of legality and proportionality) where the expression included an incitement to violence. Further, the Siracusa Principles were not legally binding in Hong Kong. Also, the development on sedition of other jurisdictions must have been made to suit their own societal, legal and political setting, which was evidently quite different from Hong Kong’s (Pwr v Director of Public Prosecutions [2022] 1 WLR 789 applied). (See paras.115, 128–129.)

Constitutional challenge — Proportionality

• (10) The offence of sedition also satisfied the four-stage test of proportionality:
  • (i) It pursued the legitimate aim of national security or public order;
  • (ii) Given its clear purposes and legal certainty, the offence was plainly rationally connected to its legitimate aim;
  • (iii) The offence was no more than necessary to accomplish its legitimate aim. The mere absence of an intention to incite violence did not render the offence disproportionate. The core of the right to free expression exercised and realised in the public domain and for the purposes of public discourse was not compromised. Moreover, under s.11(2) of the CO, no prosecution of a s.10 offence shall be instituted without the written consent of the Secretary for Justice. Such procedural safeguard avoided the risks of law enforcement agents using subjective moral or value judgment as the basis for enforcement; and in light of pt.5 and para.6.1 of the Prosecution Code, ensured that the right to free expression was properly evaluated by the Secretary for Justice in terms of sufficiency of evidence or general public interest before the prosecution of a s.10 offence was allowed to be brought;
  • (iv) A fair balance between societal benefits and the inroads made into the individual’s rights was struck. Safeguarding national security and preserving public order was indispensable to the stability, prosperity and development of society. Nothing suggested that any individual, including D, would be subject to an unacceptably harsh burden because of the restriction on seditious acts or speeches imposed by the offence. (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, Hysan Development Co Ltd v Town Planning Board (2016) 19 HKCFAR 372, Pwr v Director of Public Prosecutions [2022] 1 WLR 789 applied). (See paras.132–145.)

Whether the Slogan was seditious

• (11) In determining if the Slogan was seditious, the Judge had implicitly adopted the applicable two-step approach:
  • (i) The court first ascertained its meaning in the socio-political context and at this step may enlist the assistance of experts;
  • (ii) The court would then make findings on the factual circumstances in which the Slogan was uttered to decide if it had a seditious intention as defined in s.9(1). (See paras.151–152.)
• (12) Further, there was no basis for the Court to disturb the Judge’s decision of accepting the prosecution’s expert’s evidence and rejecting D’s expert evidence. It was also common ground between the experts that the Slogan was capable of bearing the meanings as identified by the prosecution’s expert. The Judge was entitled to proceed on that common ground to find that when D uttered the Slogan, it had such seditious intention. (See paras.155–56.)

Application for leave to appeal against sentence

• (13) The sentence was neither manifestly excessive nor wrong in principle:
  • (i) The exercise of the right of assembly did not qualify as a mitigating factor as D was being punished for the very act of inciting others to participate in, or holding, an unauthorised assembly, which act was illegal and went outside the permissible scope of the right (Leung Kwok Hung v HKSAR (2005) 8 HKCFAR 229, HKSAR v Lai Chee Ying [2023] 4 HKLRD 484 applied);
  • (ii) Both unlawful assembly and unauthorised assembly were pre-emptive offences which aimed at preventing disruption to public order involving mass gathering. The Judge was therefore entitled to consider the sentencing factors identified in Secretary for Justice v Poon Yung Wai and to take into account the context when assessing the gravity of the offences committed by D (Secretary for Justice v Poon Yung Wai [2022] 4 HKLRD 1002, HKSAR v Wong Chi Fung [2022] 1 HKLRD 1305 applied);
  • (iii) Targeting young students was an aggravating factor which should be reflected in the sentence (Secretary for Justice v Wong Chi Fung [2018] 2 HKLRD 699 applied);
  • (iv) The Judge approached totality and mitigation in accordance with well-established principles.

(See paras.171–176.)

[The above is excerpted from the headnote to the report in HKLRD.]