HKSAR v Lai Man Ling [2022] 4 HKC 410, [2022] HKDC 355

Robert Pang SC represented the 2nd defendant and Steven Kwan represented the 5th defendant in HKSAR v Lai Man Ling [2022] 4 HKC 410, [2022] HKDC 355.

The defendants faced one charge of conspiracy to print, publish, distribute, display and/or reproduce seditious publications, contrary to ss 10(1)(c), 159A and 159C of the (hk) Crimes Ordinance (Cap 200). The prosecution applied that the case be handled by a designated judge pursuant to art 44(3) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) on the ground that the case was for proceedings in relation to the prosecution of an offence endangering national security.

Held, granting the application:(1) By using the word ‘shall’, art 44(3) of the NSL made it mandatory that all proceedings relating to the prosecution for ‘offences endangering national security’ in each level of courts must be and could only be handled by the designated judges in that level of courts. Where a provision in the NSL referred to ‘offences endangering national security’, it was referring to the offences created by the NSL as well as other offences endangering national security under the existing laws of the HKSAR unless the contrary was shown in any particular provision. The Court of Final Appeal in HKSAR v Lai Chee Ying did not distinguish between those offences created by the NSL itself, and other offences of the nature of endangering national security. The Appeal Committee of the Court of Final Appeal had determined that it was not reasonably arguable that the sedition offence under s 10 of the Crimes Ordinance was not ‘an offence endangering national security’. Any of the forms of seditious intention as defined in paras (a) to (g) of s 9(1), if carried out, would have serious adverse impact on the political, social and economic stability and development of HKSAR which was an inalienable part of the People’s Republic of China, and the potential victims of the offence were the Central Authorities of the People’s Republic of China as well as the Government and the inhabitants of the HKSAR, or any of them. The defendants were charged with an offence which was an offence endangering national security. HKSAR v Ng Hau Yi Sidney [2021] 6 HKC 822 ; (2021) 24 HKCFAR 417 applied. HKSAR v Lai Chee Ying [2021] 1 HKC 670 ; (2021) 24 HKCFAR 33followed (paras 16, 23-24, 34, 37-38).

(2) The function of the Court at this point of time was simply to ensure that the alleged facts, taken at its highest, might support the offence charged with was by its nature an offence endangering national security. In the present case, the alleged facts plainly supported the application (para 40).

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