HKSAR v Tam Tak Chi (2025) 28 HKCFAR 122, [2025] HKCFA 4 (Philip Dykes SC)

Philip Dykes SC, Jeffrey Tam, and Ernie Tung represented the appellant in HKSAR v Tam Tak Chi (2025) 28 HKCFAR 122, [2025] HKCFA 4.

D was charged, inter alia, with seven charges of uttering seditious words to the public contrary to s.10(1)(b) in Pt.II of the Crimes Ordinance (Cap.200) (the CO) (the Sedition Charges) committed before and after the promulgation of the National Security Law (NSL) on 30 June 2020. 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 committed before the NSL was promulgated. The Magistrate had transferred all of the charges for trial in the District Court pursuant to s.88(1) of the Magistrates Ordinance (Cap.227) (the MO). D appealed against conviction on the ground, inter alia, that the Magistrate had no power to effect the transfer of the Sedition Charges and the District Court lacked jurisdiction to hear them. The Court of Appeal held that the District Court did have jurisdiction to try the Sedition Charges and also rejected D’s constitutional challenges against them (see [2024] 2 HKLRD 565). At issue on D’s appeal to the Court of Final Appeal were two questions of law. Question 1 was whether the offences of sedition contrary to ss.9 and 10 (now repealed) of the CO were indictable offences that must be tried in the Court of First Instance by a judge and jury under the requirements of para.5 (now repealed) of Pt.III of Sch.2 of the MO. Question 2 was whether the prosecution had to prove in relation to those offences an intention on the part of the defendant to incite third parties to violence or public disorder.

Held, unanimously dismissing the appeal, that:

Question 1: whether the District Court had jurisdiction over the Sedition Charges before and after the NSL

• (1) Prior to the promulgation of the NSL, by reason of s.14A(1) of the Criminal Procedure Ordinance (Cap.221), s.10(1)(b) of the CO was triable only summarily as it was an offence created by an Ordinance, not declared to be treason and did not contain the words “upon indictment” or “on indictment”. Therefore, the Sedition Charges did not engage s.88(1)(a) of the MO and were not transferrable under that provision and might only be transferred to the District Court if they were “piggybacking” on the transfer of an indictable offence pursuant to s.88(1)(b). Given that the Sedition Charges were transferred together with offences under the POO, some of *124 which were indictable offences, the transfer of the Sedition Charges alleged to have been committed before the promulgation of the NSL was valid. (See paras.11-23.)
• (2) After the promulgation of the NSL, in light of NSL 41(3) and the applicable authorities, the sedition offences under Pts.I and II of the CO were classified as “offences endangering national security”. NSL 41(3)’s stipulation that offences endangering national security shall be tried on indictment applied to those offences including s.10(1)(b) of the CO, thereby changing the offence from a summary offence to an indictable offence (HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, HKSAR v Ng Hau Yi Sidney (2021) 24 HKCFAR 417 applied). (See paras.24-26, 30, 43.)
• (3) However, adopting a contextual and purposive (as opposed to a literal) construction, it was clear that the change did not intend to alter the pre-NSL position and prevent the transfer of such offences by magistrates to the District Court under s.88(1) of the MO. As s.10(1)(b) of the CO did not engage s.88(1) of the MO pre-NSL, it was not intended to be included as one of the offences falling within the MO Sch.2 Pt.III para.5 exception so as to preclude transfer. Read in the context of ss.88(1) and 92 of the MO, the words in the MO Sch.2 Pt.III para.5 exception of “Any offence against Part I or Part II of the [CO]” were intended to mean “any offence then triable on indictment and falling within those Parts of the CO”, thus excluding the s.10(1)(b) offence. (See paras.27-33.)
• (4) NSL 41(3) must be read in the context of the four new offences of the NSL, which varied widely in terms of seriousness as reflected by the range of possible sentences from life imprisonment to short-term detention or restriction. Thus NSL 45 provides that all levels of court, which include the Magistrates’ Court and the District Court, “shall handle proceedings in relation to the prosecution for offences endangering national security”. Similarly, NSL 44(3) stipulates that such prosecutions should be handled by designated judges at each level of court. It followed that while NSL 41(3) stipulates that the NSL offences must be tried on indictment, this would be done while incorporating procedural provisions which ensured full flexibility regarding the level of court in which they might be tried. (See paras.34-43.)
• (5) Such legislative intention was also reflected in the repeals effected by the Safeguarding National Security Ordinance (Instrument No A305) (the SNSO), which repealed Pts.I and II of the CO as well as the exceptions contained in MO Sch.2 Pt.III, including para.5, which previously restricted transfers of the now repealed offences under the CO Pts.I and II. Such legislative changes reflected the intention that the indictable SNSO sedition offences should engage s.88 of the MO and should be transferrable thereunder without restriction. (See paras.44-48.)
• (6) Accordingly, the transfers ordered by the Magistrate in the present case were valid and the answer to Question 1 was “No”. (See para.50.)

Question 2: whether intention to incite others to violence or public disorder required

• (7) The answer to Question 2 was also “No”. The legislative history of the CO s.10(1)(b) offence showed a clear intention to displace the common law and its requirement of an intention to incite violence. Nowhere in the Sedition Ordinance 1938 was it stated that an intention to incite violence or public disorder was a necessary element of the offence. The 1938 Ordinance also introduced features under the statutory scheme which had not existed at common law. Likewise, the subsequent Sedition (Amendment) Ordinance 1970 amended the definition of “seditious intention” by introducing as new categories “incit[ing] persons to violence” and “counsel[ling] disobedience to law or to any lawful order”. Further, the Crimes (Amendment) (No 2) Ordinance 1996, which stated in the Bill’s Explanatory Memorandum that the addition of the words “with the intention of causing violence or creating public disorder or a public disturbance” to s.10 of the CO was intended to modify the statutory offence to reflect the position at common law, was passed but not brought into operation. (See paras.51-59, 79.)
• (8) Moreover, on the face of s.9(1) of the CO, an intention to incite violence under s.9(1)(f) only formed one of the various alternative forms of seditious intention in s.9(1)(a) to (g) capable of constituting the offence. (See paras.60-63.)
• (9) This was also consistent with the applicable case law. As for D’s argument that it might be possible to imply that an intention to incite violence was needed under the principle of legality, no such implication was warranted. It was not at all clear that the principle of legality would apply in relation to provisions like ss.9 and 10 of the CO as it was intended to operate to preserve fundamental rights from possible abrogation by general or ambiguous words. For s.9 of the CO, “seditious intention” was not only defined in s.9(1) but s.9(2) also specified what did not constitute the same (Wallace-Johnson v The King [1940] AC 231, Fei Yi Ming v R (1952) 36 HKLR 133 applied; Attorney General of Trinidad and Tobago v Maharaj [2023] UKPC 36 distinguished). (See paras.64-79)
• (10) Finally, the provisions of the SNSO were instructive in the context of the issue of whether an intention to incite violence was a necessary element of the statutory offence of sedition or not. Section 23(2) of the SNSO lists an intention to incite violence and an intention to incite others to do an act that did not comply with law (under paras.(e) and (f) respectively) as only two alternative and individually sufficient bases to show “seditious intention”, which showed the continuing displacement of the common law in respect of the offence of sedition (Fei Yi Ming v R (1952) 36 HKLR 133 applied). (See paras.80-82.)

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