HKSAR v Ng Gordon Ching Hang (吳政亨) & Ors [2025] 1 HKC 229, [2024] HKCFI 1468
Steven Kwan and Charlotte Chan represented the 46th Defendant in HKSAR v Ng Gordon Ching Hang (吳政亨) & Ors [2025] 1 HKC 229, [2024] HKCFI 1468.
The 16 defendants were charged together with 31 other persons with one count of conspiracy to commit subversion, contrary to art 22(3) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) and ss 159A and 159C of the Crimes Ordinance (Cap 200). The 16 defendants pleaded not guilty and their trial was before the Court of First Instance consisting of a panel of three judges. The particulars of offence were that the defendants, between 1 July 2020 and 7 January 2021, in Hong Kong, conspired together and with other persons, with a view to subverting the State power, to organize, plan, commit or participate in, by unlawful means (namely: (i) advocating, engaging or participating in a scheme with a view to abusing his or her powers and functions entrusted under art 73 of the Basic Law of the HKSAR after being elected to be a member of the Legislative Council (LegCo) for the purposes of: (a) obtaining a controlling majority in the LegCo to indiscriminately refuse to pass any budgets or public expenditure to be introduced by HKSAR Government regardless of their contents or the merits of their contents; (b) compelling the Chief Executive of the HKSAR (CE) to dissolve LegCo under art 50 of the Basic Law so as to paralyse the operations of the Government; (c) ultimately causing the CE to resign under art 52 of the Basic Law entailed by the dissolution of LegCo and the refusal to pass the original budget by the new LegCo (collectively referred to as the Scheme); (ii) with a view to carrying out the Scheme, to stand or not to stand as candidates in the 2020 LegCo election, and/or inciting, procuring, inducing or causing others to stand or not to stand as candidates in the LegCo election; (iii) undertaking or agreeing, and/or inciting, procuring, inducing or causing others to undertake or agree to exercise or forbear to exercise his or her powers and functions under art 73 of the Basic Law after being elected as a LegCo Member when examining and approving budgets or public expenditure to be introduced by the Government in accordance with the Scheme; (iv) undertaking or agreeing, and/or inciting, procuring, inducing or causing others to undertake or agree, to willfully or intentionally fail or neglect to discharge his or her duties of a LegCo Member after being elected in the 2020 LegCo election, that is, to uphold the Basic Law, bear allegiance to HKSAR of the People’s Republic of China and serve HKSAR conscientiously, dutifully, in full accordance with the Basic Law, honestly and with integrity), seriously interfering in, disrupting or undermining the performance of duties and functions in accordance with the law by the body of power of the HKSAR. The prosecution case was that the 16 defendants together with others agreed to pursue a course of conduct which was to indiscriminately veto any budgets or refuse to pass any budgets or public expenditure to be introduced by the Government regardless of the merits or the contents, in the event that they were elected to be LegCo Members and after obtaining a majority in the 2020 LegCo election with the intention of compelling the CE to respond to the ‘Five Demands Not One Less’ demand (the Five Demands) and in the case that the CE refused to do so, she would have to dissolve the LegCo under art 50 and ultimately resign under art 52. The prosecution alleged that the 16 defendants and others reached the agreement in question before the promulgation of the HKNSL on 30 June 2020 and the agreement in question became unlawful after the HKNSL came into effect but the 16 defendants continued to pursue that course. The prosecution also alleged that had the Scheme been carried out, that would paralyse the operation of the Government and inevitably create political instability in Hong Kong leading to a constitutional crisis for the HKSAR. The trial court heard evidence from the prosecution (with summaries of the evidence of prosecution witnesses in Annex A) and the defence (with summaries of the evidence of defence witnesses in Annex B) and gave rulings on the timing of sentence (with reasons in Annex C below), the admissibility of evidence sought to be adduced under the co-conspirator’s rule (with reasons in Annex D below), and the no case submissions advanced by D5, D17, D33 and D38 (with reasons in Annex E and Annex F below). Having heard closing submissions, the trial court reserved its verdict.
Held, unanimously, finding D5, D8, D10, D11, D14, D17, D24, D33, D36, D37, D38, D41, D43 and D47 guilty of the charge and finding D16 and D46 not guilty of the charge:
Admissibility of evidence under the co-conspirator’s rule
(1) In criminal cases, the co-conspirator rule held although the acts and declarations proceeded from persons not charged, or were done in the absence of the party against whom they were offered, or without his knowledge; or even before he or she joined the combination; and the possession of one conspirator was that of all. Where a person joined a conspiracy after it had been formed, the acts and declarations of co-conspirators made before he or she joined the conspiracy were admissible against him or her. However, they were only admissible against the newly joined co-conspirator to prove the nature and extent of the conspiracy, but not his or her own extent and degree of participation therein. Thus the co-conspirator rule operated to allow what might otherwise be hearsay (and therefore not admissible as proof of the truth of its contents) into evidence of the conspiracy. Where the foundation for resorting to it had been laid, the co-conspirator’s rule operated as a rule whereby evidence of the acts and declarations of one or more conspirators in furtherance of a conspiracy may be adduced to prove the extent and degree of participation of another or others in the conspiracy and the nature and extent of the conspiracy. For the conspirator’s rule to apply, there must be ‘independent’ (ie evidence other than that which is admissible under the rule) and ‘reasonable evidence’ to show the existence of the conspiracy under consideration and that the persons concerned were parties to it; and the act or description in question was made by a party ‘in furtherance of the conspiracy’. The court retained a residual discretion to exclude evidence which was admissible under the co-conspirator’s rule. Oei Hengky Wiryo v HKSAR (No 2) [2007] 1 HKLRD 568 ; (2007) 10 HKCFAR 98 ; [2007] HKCU 245; and Vivien Fan & Ors v HKSAR [2012] 3 HKC 72 ; (2011) 14 HKCFAR 641 followed (Annex D, paras 8-15).
(2) Acts and declarations done or uttered by an alleged co-conspirator before 1 July 2020 were inadmissible as an exception to hearsay made under the co-conspirator rule. However, such acts and declarations were admissible for non-hearsay purpose. The NSL, taken as a whole, was not intended to and did not have retrospective effect. There was reasonable evidence that D1 and PW1 had formed an agreement to embark upon the Scheme in furtherance of the common purpose to compel the HKSAR Government to respond to the Five Demands by indiscriminately veto the budgets or public expenditure to be introduced by the Government. There was reasonable evidence that the Scheme was already in existence by the time of the press conference on 25 March 2020, if not earlier. There was reasonable evidence that the Scheme continued for some time after the Primary Election. However, it was not accepted that the Scheme would necessarily amount to or involve the commission of any offence prior 1 July 2020. Also, the prosecution should not be allowed to rely on ‘conspiracy to commit misconduct in public office’ after all accomplice witnesses had finished their evidence as the basis for invoking the co-conspirator’s rule in order to cover pre-NSL acts and declarations. But acts and declarations done or made at a time when the Scheme was not criminal could not be admissible pursuant to the co-conspirator’s rule. If the co-conspirator’s rule were technically applicable to pre-NSL acts and declarations, the court would exercise its discretion to exclude them for hearsay purpose on the ground of unfairness. Secretary for Justice v Lam Tat Ming [2000] 2 HKC 693 ; [2000] 2 HKLRD 431 ; (2000) 3 HKCFAR 168; and Vivien Fan & Ors v HKSAR (above) applied. United States v Dennis 183 F (2d) 201 (1950) distinguished (Annex D, paras 22-28, 30, 43, 44, 77).
(3) In respect of acts and declarations done or uttered on or after 1 July 2020, threshold requirements were met in respect of each and every defendant and the co-conspirator rule was therefore applicable. The prosecution case was that even though the Scheme was formed before 1 July 2020 and at a time when it was not yet unlawful, it continued to exist and became unlawful after the promulgation of the NSL. There was reasonable evidence that the Scheme had come into being among the organizers in around June 2020 and that the Scheme continued to exist after the promulgation of the NSL. In order to invoke the co-conspirator rule, the prosecution had to show that there was independent and reasonable evidence on two matters: (a) during the charge period there was in existence the agreement as pleaded and (b) the defendants were parties to the agreement. As regards those defendants who were candidates in the Primary Election, there were pieces of relevant evidence that upon considering their accumulative weight, there was sufficient independent ‘reasonable evidence’ against each of them showing that: (i) prior to the commencement of the nomination for the Primary Election, the Scheme had already been formed among the organizers; (ii) the defendants had become parties to the Scheme by the time when they submitted their respective nomination forms, if not earlier; and (iii) after the promulgation of the NSL, the Scheme continued to exist and the defendants remained parties to it until sometime after the Primary Election. As regards D5, there was reasonable evidence that he was a party to the Scheme. The post-NSL acts and declarations under consideration before the court were done or made ‘in pursuant of’ the Scheme in that they were conducive to the common purpose (identified in (2) above). HKSAR v Cheung Sing Chi & Anor [2004] 2 HKC 351 applied. HKSAR v Chen Keen [2019] 5 HKC 379 ; (2019) 22 HKCFAR 248 ; [2019] HKCFA 32 considered (Annex D, paras 47-62, 66, 78).
(4) The acts and declarations of the defendants concerned in the items referred to by the prosecution were relevant and admissible in that they were capable of explaining the conduct of the doers and makers and/or cast light on their individual state of mind at the material period. In this regard, no distinction should be made between the pre-NSL acts and declarations and the post-NSL ones. There were no valid grounds for excluding any of the acts and declarations which were to be used for non-hearsay purpose. Ahern v R (1988) 165 CLR 87; Oei Hengky Wiryo v HKSAR (No 2) (above); and HKSAR v Arias Guardia (above) followed (Annex D, para 81).
The Offence of Conspiracy to Commit Subversion by Other Unlawful Means
(5) The elements of the substantive offence of subversion under art 22(3) of the NSL were: (i) organized, planned, committed or participated in; (ii) any act by the use of force or threat of force or other unlawful means; (iii) which seriously interfered in, disrupted or undermined the performance of duties and functions in accordance with the law by the body of power of the HKSAR; (iv) with a view to subverting the State power. Element (i) was part of the actus reus of the offence. Element (ii) related to the nature of the means adopted by the defendants. Element (iii) related to the nature of the overt act and its consequence. This together with element (i) constituted the actus reus of the offence. The actus reus had to be intentional so that any lesser form of mens rea would not be sufficient. Element (iv) was an additional mental element which made the offence one of ‘specific intent’. Whereas the prosecution had to prove the double intent that the defendants intended to carry out the means which was the subject of the charge and that the defendants so acted with ‘a view to subverting the State power’, the prosecution was not required to prove that the defendants knew that the means was unlawful. Having regard to the purpose of the NSL, the gravamen of the offence of subversion lied on the fact that an accused intentionally committed an act which was prohibited by the article and that he or she did so with a view to subverting the State power. Therefore, it was irrelevant to the issue of guilt that the accused acted with a mistaken belief that his or her means was lawful; to hold otherwise would go against the purpose of the NSL (paras 9, 10, 44-46).
(6) The part of art 22(3) of the NSL relied on by the prosecution was that any person who participated in any act which would be seriously interfering in, disrupting or undermining the performance of duties and functions in accordance with the law by the body of power of the HKSAR by ‘other unlawful means’ with a view to subverting the State power should be guilty of the offence. On a purposive interpretation of the relevant articles of the NSL, ‘other unlawful means’ should not be confined to unlawful means with the use of force or the threat of force under the ejusdem generis rule of construction. The mischief rule required art 22(3) to be construed to cover acts not just by the use of force or the threat of force, but also other unlawful means. Also, ‘other lawful means’ did not have to refer to a criminal offence; otherwise it would go against the stated purpose of the NSL. In respect of budgets, LegCo members collectively had a constitutional duty to examine and approve budgets when the occasion arose based on their merit. Whilst LegCo was not expected to and should not automatically and mechanically approve the budgets presented by the HKSAR Government, a deliberate refusal by the majority of LegCo members to examine the budgets regardless of their contents and merits would be a clear violation of art 73 of the Basic Law of the HKSAR and art 3 of the NSL. If there was a plan by the majority of LegCo members to veto the budgets indiscriminately, ie regardless of their contents and merits, with a view to force the Government to accede to their political agenda, that would amount to an abuse of their power. An act which would seriously interfere in, disrupt or undermine the performance duties and functions of the Government was clearly an act which would endanger national security in Hong Kong. Director of Immigration v Chong Fung Yuen [2001] 2 HKLRD 533 ; (2001) 4 HKCFAR 211 ; [2001] HKCU 660; HKSAR v Lai Chee Ying [2021] 1 HKC 670 ; (2021) 24 HKCFAR 33 ; (2021) 24 HKCFAR 67 ; [2021] HKCFA 3; HKSAR v Chan Chun Kit [2022] 6 HKC 1 ; (2022) 25 HKCFAR 191 ; [2022] HKCFA 15; and HKSAR v Lui Sai Yu [2023] 6 HKC 472 ; (2023) 26 HKCFAR 332 ; (2023) 26 HKCFAR 362 ; [2023] HKCFA 26 applied. HKSAR v Tam Tak Chi [2024] 3 HKC 593 ; [2024] 2 HKLRD 565 ; [2024] HKCA 231 considered (paras 11, 16, 18-37, 74, 77, 78).
(7) A serious interference in, disruption or undermining of the performance of duties and functions in accordance with the law by the body of power of the HKSAR as referred to in art 22(3) (namely, the powers of the Government of the HKSAR and the duties and functions performed by various organs of the Government) could amount to an act ‘subverting the State power’. If a person acted with the intention to bring about a ‘serious interfering in, disrupting, or undermining of the performance of such duties and functions’, he or she would have done so ‘with a view to subverting the State power’. Article 22 could also be construed to be a self-defining provision in the sense that once any of the three prohibited acts, ie art 22(1), (2) and (3), which involved the undermining of an established political system, had been committed with the intention to bring out the respective consequences as stated in the sub-paragraphs, that would amount to subversion. The parameters of the offences created by art 22(1), (2) and (3) were both clear and certain (paras 52, 55, 61, 63, 64).
(8) An indiscriminate vetoing of the budgets or public expenditure introduced by the HKSAR Government with a view to compel the Government to accede to certain political agenda would be a violation of art 73 and art 104 of the Basic Law, not to say if such acts were accompanied with a view to undermining the power and authority of the Government or the CE. As such, it would be clearly beyond the purpose of any privileges under consideration for them to cover LegCo members who had publicly professed the intention to commit such a violation of the constitutional duty (paras 81, 88).
(9) The elements of the statutory conspiracy charge in the present case were informed by the statutory offence, which the defendants allegedly agreed to commit. The prosecution was required to prove that the defendant under consideration agreed with at least one of the named co-conspirators to commit a course of conduct which, if executed in accordance with their intentions, would necessarily involve the commission of the offence under art 22(3) of the NSL by one or more of them. The necessary mens rea for the charge was the intention to carry out the crime of conspiracy. The essence of the charge was the allegation that the defendants were parties to an agreement to participate in the Scheme so as to seriously interfering in, disrupting, or undermining the performance of duties and functions of the HKSAR Government by first obtaining a controlling majority in LegCo and then unlawfully abusing their power as LegCo members by indiscriminately vetoing any budgets or public expenditure to be introduced by the Government, with the effect that the CE would be forced to dissolve LegCo twice and eventually to step down as provided for in the Basic Law. The only fact or circumstance which was necessary for a defendant to know for the commission of the offence under art 22(3) was the knowledge that his or her act would have the consequence of ‘seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with law’ by the body of power of the HKSAR. It was the existence of that fact or circumstance which was an ingredient of the offence. The prosecution were also required to prove the specific intent of ‘with a view to subverting the State Power’, but it was not necessary for the prosecution to prove that the defendant knew that the means to be employed was ‘unlawful’. HKSAR v Lai Kam Fat [2019] 6 HKC 293 ; (2019) 22 HKCFAR 289 ; [2019] HKCFA 36; and Yip Chiu-cheung v R [1995] 1 AC 111 applied (paras 66, 92, 93; Annex E, paras 15, 18).
(10) The indiscriminate vetoing of the budgets, if carried out in accordance with the intention of the parties as alleged, would necessarily lead to ‘seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of power of the HKSAR’. The possibility that the CE might apply to LegCo under art 51 of the Basic Law for provisional appropriations did not assist the defence since if the agreement was to force the HKSAR Government to comply with the Five Demands, and the refusal was done without looking at the contents and the merits of the budgets, and if the defendants indeed intended to carry out their part of the agreement as alleged, it would not be possible for them to approve the CE’s application for provisional appropriations. Likewise, the possibility of introducing a second bill within the same session would not have assisted the defence. The CE’s power to approve provisional short-term appropriations according to the level of expenditure of the previous fiscal year under art 51 after the first dissolution of LegCo meant the Government would not be able to introduce any new policies or any increase in expenditure regarding existing policies on benefitting people’s livelihood. The performance of its duties and functions would be seriously undermined or disrupted (paras 95, 97-100).
(11) Provided that all the elements of the offence charged was present, s 159A(1)(b) of the Crimes Ordinance stipulated that the fact that the offence was objectively impossible to succeed would not afford the accused a defence. Therefore, even if the facts were such that commission of the underlying offence of art 22(3) of the NSL was impossible, the conspiracy could still be caught by s 159C. That said, the intention to carry out the underlying offence was a critical element of the offence of conspiracy. In the present case, since one of the ingredients of the substantive offence was that the act was done with a specific intent, the prosecution had to prove not only that the conspirators had intended to do the prohibited act, but also that they had intended to do the prohibited act with the specific intent (paras 101, 102).
[The above is excerpted from the headnote to the report in HKC.]
