HKSAR v. Tong Ying Kit

HCCC 280/2020

[2021] HKCFI 946

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 280 OF 2020

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Before:  Hon Toh, Anthea Pang and Wilson Chan JJ in Court

Date of Hearing and Ruling:  8 April 2021

Date of Reasons for Ruling: 9 April 2021

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REASONS FOR RULING

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The Court:

1.The prosecution applies to adduce at trial the expert evidence of Professor Lau Chi-pang who provided an expert report dated 29 March 2021 which was filed with the court as additional evidence.

2.At trial, one of the key issues is the meaning of the subject words “Liberate Hong Kong Revolution of Our Times” at the time of the offences.  The prosecution submits that the proposed expert evidence is relevant to this issue and can assist the court to properly understand the meaning of the subject words when viewed in the context in which they have been used in Hong Kong from their first appearance in 2016 until more recent times and to determine whether the defendant may be found to have such understanding of the words at the material time. 

3.The expert report contains 8 parts (Part A to Part H).  In our view, Part E and Part F properly deal with the meaning of the subject words, in particular, the origin and development, both historical and recent, of the meaning of the words “Liberate Hong Kong Revolution of Our Times” whether in Chinese, English or both.  This clearly falls within the scope of expert evidence admissible at trial.

4.However, Part A to Part D and Parts G and H of the expert report clearly in our view do not only deal with the meaning of the subject words, rather, in Part A to Part D, they purport to contain expert evidence as to the meaning of the following words and phrases used in the relevant parts of the statute itself (namely, Articles 20 and 24 of the NSL[1]) and in Parts G and H, whether the subject words carry such meaning:

(1)  What is meant by “secession of the PRC and undermining the unification of the PRC” (under Article 20);

(2)  What is meant by “separating the HKSAR from the PRC” (under Article 20);

(3)  What is meant by “altering by unlawful means the legal status of the HKSAR” (under Article 20); and

(4)  What is meant by “a political agenda” (under Article 24).

5.As accepted by the prosecution, expert evidence as to the meaning of ordinary words used in a modern piece of legislation is not admissible, the duty of the court at trial is to interpret and give effect to the words used in a statute, without reference to any particular meaning attached to those words by a particular branch of the community (in this case, historians).  In construing a modern statute, not dealing with the particular customs of a particular locality, or the practice of a particular trade, but of general application, expert evidence such as is sought to be adduced by the prosecution is inadmissible. (See: Marquis Camden v Commissioner of Inland Revenue [1914] 1 KB 641 (CA), at pp 647-650) In the course of submissions, the prosecution confirms that this is not a case calling for an exception to the application of the well established legal principles as expounded in Marquis Camden.

6.For the reasons stated above, we rule that Parts E and F are admissible, but Part A to Part D and Parts G and H of the expert report are not admissible at trial. 

Mr Anthony Chau, DDPP(Ag.) of the Department of Justice, for HKSAR

Mr C S Grossman, SC, leading Mr Lawrence Lau (both assigned by DLA) and Ms Tessa Chan, instructed by Messrs Bond Ng Solicitors, for the defendant