HKSAR v Yeung Suet Ying Clarisse (楊雪盈) [2026] 3 HKLRD 300, [2026] HKCA 284 (Robert Pang SC, Steven Kwan, Donald Ting)

Steven Kwan and Donald Ting represented the 3^rd applicant (D37), Robert Pang SC and Yvonne Leung represented the 4^th applicant (D47), and Steven Kwan (on conviction only) and Yvonne Leung represented the 7^th applicant (D5) in HKSAR v Yeung Suet Ying Clarisse (楊雪盈) [2026] 3 HKLRD 300, [2026] HKCA 284.

The first applicant (D10 at trial) was one of the 47 defendants charged with one count of conspiracy to commit subversion, contrary to art.22(3) of the National Security Law (the NSL) and ss.159A and 159C of the Crimes Ordinance (Cap.200). D1-4 were the organisers of a primary election held in July 2020 (the Primary Election) for selecting pro-democracy candidates for the subsequently postponed 2020 Legislative Council (LegCo) election. In particular, D1 had launched “Project 35+” (the Project), which aimed to gain a majority of LegCo seats so that Government budgets could be vetoed indiscriminately as a means to compel the Government to respond to five demands which had been raised by protestors (the “Five Demands”), failing which the Chief Executive would have to dissolve the LegCo under art.50 of the Basic Law (BL 50) and ultimately resign under art.52 of the BL (BL 52). D5, who was neither an organiser nor a candidate, launched a campaign to support the Project, while D6-47 were candidates in the election.

The prosecution case was that the Primary Election was part of an agreement, between 1 July 2020 and 7 January 2021, after the promulgation of the NSL on 30 June 2020, to use unlawful means to seriously interfere in, disrupt, or undermine the performance of duties and functions in accordance with the law by the body of power of the HKSAR, and with a view to subverting the State power. The agreed unlawful means was to participate in a scheme (the Scheme) involving the abuse of LegCo members’ powers under art.73(2) of the BL (BL 73(2)) for the purposes of: (i) obtaining a controlling majority in the LegCo to indiscriminately refuse to pass any Government budgets or public expenditure; (ii) compelling the Chief Executive to dissolve the LegCo under BL 50 so as to paralyze Government operations; and (iii) ultimately causing the Chief Executive to resign under BL 52 entailed by LegCo’s dissolution and the new LegCo’s refusal to pass the original budget. The carrying out of the Scheme (the Course of Conduct) amounted to a subversive act under NSL 22(3).

31 of the 47 defendants pleaded guilty, while all others were convicted after trial (except D16 and D46 who were acquitted). The Trial Court imposed different terms of imprisonment on the 45 convicted defendants, ranging from 4 years and 2 months to 10 years.

The present proceedings involved (i) appeals on questions of law alone and applications for leave to appeal against conviction by D5, D8, D14, D17, D33, D36-38, D41 and D47 and an application for leave to appeal against conviction out of time by D10; (ii) applications for leave to appeal against sentence by the above Ds except D33; (iii) an application for leave to appeal against sentence by D27, one of the Ds who pleaded guilty; and (iv) an appeal by way of case stated by the Secretary for Justice (the SJ) against D16’s acquittal.

The appeals raised five common grounds of law regarding NSL 22: (i) whether the ejusdem generis rule of statutory interpretation applied to NSL 22(3) such that the phrase “other unlawful means” only included unlawful means involving “the use of force or threat of force” (the 1st Common Ground); (ii) whether the phrase “other unlawful means” was only confined to criminal acts (the 2nd Common Ground); (iii) whether a genuinely and honestly held belief that the means adopted was lawful was a defence (the 3rd Common Ground); (iv) whether an agreement to veto the budget indiscriminately to force the Government to accede to political demands was an abuse of power in breach of BL 73 amounting to an unlawful means (the 4th Common Ground); and (iv) whether a mere intention to force the Chief Executive to resign under BL 50-52 amounted to an intention to subvert (the 5th Common Ground). The remainder of the applicants’ individual grounds of appeal against conviction fell into three categories: (i) errors of fact findings; (ii) excessive judicial intervention; and (iii) the classification of D5’s statements as mixed statements instead of res gestae evidence.

Held, dismissing the appeals against conviction and sentence, and the appeal by way of case stated, that:

1st and 2nd Common Grounds: proper meaning of “other unlawful means”

• (1) The Trial Court was correct in holding that “other unlawful means” under NSL 22 covered all unlawful means, and was not restricted to means involving force or threat of force. This interpretation gave full effect to the NSL’s three primary purposes: upholding the “one country, two systems” regime and the constitutional order in the HKSAR; effectively preventing, stopping, and punishing all acts and activities endangering national security; and preventing, stopping, and punishing all acts and activities endangering the constitutional order in the HKSAR, whether involving force or otherwise (HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33, HKSAR v Lui Sai Yu (2023) 26 HKCFAR 332, Secretary for Justice v Persons Conducting in Acts Prohibited Etc (274/2023, 303/2023) (Use of Protest Song) [2024] 3 HKLRD 32 applied). (See paras.48-63, 91.)
• (2) Contrary to the applicants’ submissions, the ejusdem generis rule of statutory interpretation did not apply to restrict the meaning of “other unlawful means” to those involving the use of force or threat of force. Although the rule could be applied in the NSL context, as the same contextual and purposive approach to statutory construction applied to both local statutes and the NSL, here it was displaced by contrary intention as shown by the NSL’s primary legislative purposes (HKSAR v Luk Kin Peter Joseph [2016] 1 HKLRD 378, HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191 applied). (See paras.65-70.)
• (3) The meaning of the phrase “other unlawful means” was not confined to criminal acts either. A restrictive construction of NSL 22 did not detract from the application of the contextual and purposive construction, and there was no ambiguity in the phrase (Secretary for Justice v Cheng Ka Yee (2019) 22 HKCFAR 97 applied). (See paras.83-85.)

3rd Common Ground: genuine belief that the means was lawful

• (4) The argument that a defendant could rely on a genuinely and honestly held belief that the means adopted was lawful as a defence was not maintained at the hearing. The correct position was that whilst this was not a defence, it was a matter of evidence relevant to the question of whether the defendant had a specific intent to subvert. (See paras.88-89, 91.)

4th and 5th Common Grounds: whether elements of offence satisfied and non-intervention principle applied

• (5) LegCo members, having taken an oath pursuant to BL 104, were under a constitutional duty to uphold the Basic Law and the constitutional order of the HKSAR when exercising their powers and functions, including when holding the Government accountable in relation to fiscal matters under BL 64 and examining and approving budgets under BL 73(2). Articles 2 and 12 of the BL were fundamental provisions establishing the constitutional order. BL 2 underscored that the source of HKSAR’s autonomy was authorization by the National People’s Congress. BL 12 provided that the HKSAR was under the Central People’s Government’s (CPG) jurisdiction. Accordingly, under BL 15, the CPG appointed the Chief Executive and principal officials of the executive authorities (Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460 applied). (See paras.101-103, 126-136, 171.)
• (6) The Scheme amounted to an “unlawful means” under NSL 22 as it was conceived, advocated, and pursued by D1 as a “constitutional mass destruction weapon” for the purpose of forcing the Chief Executive to resign and toppling the constitutional order in the HKSAR. This analysis proceeded on the assumption that LegCo members were entitled to take into account extraneous considerations in examining budgets to make the Chief Executive or Government accountable for non-fiscal matters. Whether this assumption was correct was an open question of great constitutional significance requiring more mature consideration. (See paras.137-159, 171.)
• (7) The Course of Conduct was a prohibited act under NSL 22(3) as it sought to implement the Scheme by using the mechanism under BL 50-52 to achieve the prescribed subversive consequences. (See paras.160-162, 171.)
• (8) The non-intervention principle, under which the court would not intervene to rule on the propriety of the legislature’s internal processes, was not applicable. The courts had authority to determine if there had been a breach of constitutional duty by LegCo members to uphold the Basic Law and constitutional order of the HKSAR (Leung Kwok Hung v President of the Legislative Council (No 1) (2014) 17 HKCFAR 689, Chief Executive of HKSAR v President of the Legislative Council [2017] 1 HKLRD 460 applied). (See paras.120, 163-165.)
• (9) The purpose of seriously interfering in the constitutional order of the HKSAR by triggering the consequences provided for under BL 50-52 (the Chief Executive dissolving LegCo and resigning) amounted to a subversive intent under NSL 22. (See paras.167-169.)

Other individual grounds of appeal

• (10) There was no merit to the individual complaints regarding the Trial Court’s adverse factual findings and inferences. (See paras.183-267.)
• (11) The complaints alleging excessive judicial intervention were not established either. The Trial Court’s interventions were made in response to counsel asking irrelevant questions or for clarification and case management purposes (HKSAR v Lai Oi Yan [2016] 3 HKLRD 273 applied). (See paras.273-287.)
• (12) Contrary to D5’s argument, his statements did not constitute res gestae evidence as there was no unusual or startling or dramatic triggering event for them. However, the Trial Court was wrong to classify the statements as “mixed statements” instead, since they had been made prior to the commission of the offence. Despite the misclassification, there had been no prejudice to D5. (R v Andrews [1987] AC 281, R v Sharp (1988) 86 Cr App R 274 applied). (See paras.290-296.)

Sentences

• (13) Contrary to the Trial Court’s view, the penalty bands under NSL 21 applied not only to sentencing for conspiracy to commit a NSL 20 offence, but also applied to sentencing the present offence under NSL 22. Further, the general sentencing process for conspiracy to commit a NSL 20 offence applied equally to NSL 22 (HKSAR v Lui Sai Yu (2023) 26 HKCFAR 332, HKSAR v Wong Kin Chung [2025] HKCA 813 applied; HKSAR v Ma Chun Man [2022] 5 HKLRD 246 considered). (See paras.308-310.)
• (14) The first group of grounds of appeal against sentence concerned the general starting point of 7 years’ imprisonment adopted by the Trial Court, which was enhanced by 6 months for D5 and by 1 year for D37. The general starting point was proper: the applicants had been active participants in the Scheme and the reliance on Herry Jane Yusuph, which concerned sentencing for drug trafficking, was misplaced. The enhanced starting points for D5 and D37 were also justified: D5 had important roles in running the Primary Election, and D37 was one of the initiators of a declaration for candidates in the Primary Election to publicly announce that they would use their LegCo powers to advance the “Five Demands” (R v Cooke [2017] EWCA Crim 1272 considered; HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 distinguished). (See paras.304, 312-322.)
• (15) The second group of grounds of appeal against sentence concerned the discount for mitigation. The Trial Court had been correct in not giving any reduction on sentence on account of the impossibility of the Scheme. However, there could be no valid complaint about the discount given for mistake as to law when the Trial Court had been wrong in considering it as a valid mitigating factor in the present case. For D14 and D36, the respective discounts of 2 and 3 months for their community service had been the upper limit given the seriousness of the offence. For D41 and D38, the withholding of discount was justified given their recidivism (R v Wu Man Hon [1993] 2 HKC 267, R v Dhiren Barot [2008] 1 Cr App R (S) 31 considered; R v Sachs [1953] (1) SA 392, R v Pitchford and Cook (1982) 66 CCC (2d) 568 distinguished). (See paras.305, 323-338.)
• (16) The remaining ground of appeal against sentence concerned totality. The Trial Court was justified in imposing wholly consecutive sentences for D27 and D37 for their conspiracy and separate riot convictions (HKSAR v Ngai Yiu Ching [2011] 5 HKLRD 690 applied). (See paras.306, 339-343.)

Case stated

• (17) In essence, the SJ’s argument was that the bulk and weight of the evidence against D16 was overwhelming. There was no merit to this, and the Trial Court’s findings could not be said to be perverse. D16’s case was comparable to that of the acquitted defendant in Secretary for Justice v Lo Kin Hei ; his case was that he had advocated for changing the law on public order, increasing the transparency of judicial appointments, and the provision of Legal Aid, instead of the “Five Demands” (Secretary for Justice v Lo Kin Hei [2025] HKCA 294 considered). (See paras.362-371.)

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