HKSAR v Chan Tai Sum [2022] 4 HKLRD 154, [2022] HKDC 815

Steven Kwan, with Charlotte Chan, represented the defendant in HKSAR v Chan Tai Sum [2022] 4 HKLRD 154, [2022] HKDC 815.

D was charged with one count of inciting others to take part in an unlawful assembly (Charge 1), and three counts of doing an act or acts with seditious intention, contrary to s.10(1)(a) of the Crimes Ordinance (Cap.200) (the CO) (Charges 2-4). The sole issue in the present proceedings was whether the District Court had the jurisdiction to hear and determine Charges 2-4, which depended on whether the sedition offence was a summary or indictable offence. Section 88(1)(b) of the Magistrates Ordinance (Cap.227) (the MO) allowed the transfer of a summary offence to the District Court, if accompanied by a transferable indictable offence. Section 88(1)(a) of the MO allowed the transfer of an indictable offence to the District Court, as long as it was not included in any of the categories specified in Pt.III of Sch.2 to the MO. The prosecution argued that all the charges had been properly transferred to the District Court, as there was no dispute that Charge 1 was an indictable offence, whereas Charges 2-4 were summary offences which the Magistrate had jurisdiction to transfer alongside Charge 1 under s.88(1)(b) of the MO. D agreed that Charge 1 had been properly transferred to the District Court, but contended that Charges 2-4 had not been properly transferred, as they were indictable offences, and therefore not transferable under s.88(1)(b) of the MO (which only applied to summary offences) or s.88(1)(a) of the MO (which expressly excluded indictable offences specified in Pt.III of Sch.2 to the MO, such as the sedition offence). D argued that the sedition offence was an indictable offence on the following bases: (i) the meaning of “indictable offence” in s.88(1) of the MO was to be found in s.2 of the MO, and the sedition offence was an indictable offence within the meaning of that section; (ii) if the sedition offence was a summary offence, there would be no point in including it in Pt.III of Sch.2 to the MO so as to exclude it from being transferred to the District Court, when it was not transferrable under s.88(1)(a) of the MO in the first place; (iii) the sedition offence could not be a summary offence as no magistrate had jurisdiction to hear and determine such charge by virtue of ss.91 and 92 of the MO; (iv) all other offences under Pts.I and II of the CO were indictable offences; and (v) even if the sedition offence had been a summary offence, it had become an indictable offence by virtue of art.41(3) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL).

Held, ruling that Charges 2-4 were validly transferred to the District Court and that the District Court had jurisdiction to hear and determine Charges 2-4, that:

• (1) The sedition offence was a summary offence which had been properly transferred to the District Court alongside an indictable offence (Charge 1), under s.88(1)(b) of the MO. (See paras.81-83.)
• (2) First, whether a particular offence was an indictable offence or a summary offence was to be determined according to s.14A of the Criminal Procedure Ordinance (Cap.221) (the CPO). Once classified, the same section also stipulated the appropriate mode of trial for the offence. Contrary to D’s submissions, the definition of “indictable offence” in s.2 of the MO was unhelpful, as read together with ss.72 and 79 of the MO, it only provided a circular definition which gave no clue as to whether an offence was an indictable or summary one. Applying s.14A of the CPO, the sedition offence was a summary offence and was triable summarily only. (New Chuan Kong Investment Co Ltd v Securities & Futures Commission (1999) 2 HKCFAR 490, HKSAR v Oi San Kok Lo Oi Ho [2001] 4 HKC 208, HKSAR v Lung Po Chak [2008] 1 HKLRD 644, Chiang Lily v Secretary for Justice [2009] 6 HKC 234 applied; Attorney General v PH O’Donnell [1985] 2 HKC 283, R v Wong Chi Man [1990] 1 HKC 196 considered). (See paras.30-59.)
• (3) Second, the wording of Pt.III of Sch.2 to the MO, in its current form, was mistaken and imprecise. The proper description of the 5th category of offences specified in Pt.III of Sch.2 should be read to mean “any indictable offence against Part I or Part II of [the CO]”. The description of the 2nd category of offences in Pt.III of Sch.2 was similarly imprecise. This did not mean that all the offences under Pts.I or II of the CO, such as the sedition offence, were indictable offences. (See paras.63-66.)
• (4) Third, a permanent magistrate would have the jurisdiction to hear and determine the sedition offence as it was a summary offence, but a special magistrate would have no jurisdiction as the sedition offence attracted a possible sentence beyond his/her sentencing power. Sections 91 and 92 of the MO only limited the jurisdiction of a special magistrate and permanent magistrate to try indictable offences summarily, and the offences included in Sch.2 to the MO had to be interpreted to mean indictable offences of the description specified in the Schedule. (See para.67.)
• (5) Fourth, the fact that all the other offences under Pts.I and II of the CO were indictable offences did not mean that the sedition offence should be similarly categorised. Each of the other offence-creating provisions contained the words “on indictment” or “upon indictment”, leaving no doubt that they were indictable offences under s.14A of the CPO. The fact that the sedition offence did not contain these words indicated that the legislative intent was for it to be treated as a summary offence. (See paras.68-69.)
• (6) Fifth, applying a contextual and purposive interpretation to the term “offence endangering national security” in art.41(3) NSL (which stipulated that “case concerning offence endangering national security within the jurisdiction of the Hong Kong Special Administrative Region shall be tried on indictment”), it did not include the sedition offence, because it could not be said that the NSL had been intended to usurp the Legislature’s function and convert the sedition offence from a summary offence into an indictable offence. This was supported by art.23 of the Basic Law which clearly provided that the HKSAR “shall enact laws on its own” to prohibit any act of sedition, as well as various authorities explaining that the NSL’s function was to complement local laws to protect national security. (HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, HKSAR v Ng Hau Yi Sidney (2021) 24 HKCFAR 417applied). (See paras.73-79.)

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