HKSAR v Tam Tak Chi [2021] 2 HKLRD 491, [2021] HKDC 424

Philip Dykes SC and Brian Tsui appeared for the defendant in the District Court in HKSAR v Tam Tai Chi [2021] 2 HKLRD 491, [2021] HKDC 424.

D faced 14 criminal charges, including 7 sedition charges contrary to s.10(1)(b) of the Crimes Ordinance (Cap.200) (the CO) and a sedition conspiracy charge. D submitted that the District Court may not have the jurisdiction to try and hear the sedition charges. D argued that the sedition offences under s.10(1)(b) were offences endangering national security and shall be tried on indictment under art.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). On that premise, D contended that magistrates were not competent to try sedition offences because of the restrictions on excepted offences under Pt.I of Sch.2 to the Magistrates Ordinance (Cap.227) (the MO). D further argued that Pt.III of Sch.2 to the MO limited the power of transferring excepted offences to the District Court and that those indictable sedition offences could only be tried in the Court of First Instance. On the other hand, the prosecution argued that the District Court had the jurisdiction to try all the sedition offences. The prosecution submitted that the sedition offences were summary offences because the offence provision did not have words “upon indictment or on indictment”, and the enactment of the NSL did not change that nature; and that the sedition offences were transferred together with other indictable offences to the District Court pursuant to s.88(1)(b) of the MO.

Held, ruling that the sedition charges were validly transferred to the District Court and that the District Court had the jurisdiction and powers to try the sedition charges, that:

(1) Article 41(3) of the NSL stipulates that all cases concerning offences endangering national security are cases to be “tried on indictment”. The sedition offence, being an offence endangering national security, was an indictable offence, despite the fact that the words “on indictment” did not appear in the original sedition offence provision under s.10 of the CO. (See paras.39, 46, 54.)

(2) If sedition offences were offences endangering national security, it would be absurd that the Standing Committee of the National People’s Congress would exclude the s.10 offences from being tried in the District Court. Under the NSL, it was clear that offences endangering national security were not limited to those four specific offences under Chapter III, namely secession, subversion, terrorist activities and collusion with a foreign country or with external elements to endanger national security. That explained why art.45 states that unless otherwise provided by the NSL, all courts in Hong Kong, including the District Court, shall handle proceedings in relation to the prosecution for offences endangering national *493 security in accordance with the laws of the HKSAR. (See paras.40, 54.)

(3) As the NSL prevailed over the local laws in Hong Kong under art.62 of the NSL where inconsistencies appeared, the excepted offences relating to Pts.I and II of the CO as stated in Pt.III of Sch.2 to the MO, being inconsistent with the general principles and the relevant articles of the NSL, would not be valid. Part III had to be “adapted” to cater for offences endangering national security. That meant the sedition offences could still be transferred to the District Court for trial because sedition offences were no longer excepted offences in Sch.2 to the MO. In these circumstances, it would be lawful for the Magistrate to transfer the indictable offence under s.88(1)(a) of the MO. The transfer of these sedition offences to the District Court was valid and the transfer was effected in accordance with the NSL. The same ruling could also apply, at least partly, to the sedition conspiracy charge. This approach was consistent with the spirit of and the general principles under Chapter I of the NSL and s.19 of the Interpretation and General Clauses Ordinance (Cap.1). (See paras.48 – 51, 54 – 55.)

(4) By analogy, this approach could also have an impact on Pt.I of Sch.2 to the MO relating to those offences that could be labelled as offences of national security. (See para.52.)

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