HKSAR v. Lai Man Ling and Others

DCCC 854/2021

[2022] HKDC 1004

IN THE DISTRICT COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

CRIMINAL CASE NO 854 OF 2021

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REASONS FOR SENTENCE

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1.The 5 defendants herein (D1 to D5) are convicted after trial of one charge of conspiracy to print, publish, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap 200.

Facts

2.The facts of this case can be found in the Reasons for Verdict. 

3.The General Union of the Hong Kong Speech Therapists (“GUHKST”) was established on 13 November 2019 by D1, Miss Wong Hoi-ching and another 5 persons.  It was duly registered as a trade union in Hong Kong under the Trade Union Ordinance on 22 November 2019.  After an Extraordinary General Meeting of GUHKST was held on 12 December 2019, D1 to D5 together with Wong Hoi-ching were elected by its members to be executives of the 1^st Executive Council of the GUHKST for a term of two years.

4.On 4 June 2020, the 1^st Executive Council of the GUHKST published a picture book with the title “羊村守衛者” (“Book 1”).  On 19 December 2020, it published another picture book with the title “羊村十二勇士” (“Book 2”).  On 16 March 2021, it published the third picture book with the title “羊村清道夫” (“Book 3”).  At the time when the defendants were arrested on 22 July 2021, another picture book with the title of  “羊村投票日” was being prepared.

5.These books were published in the form of hardcopies (實體版), e-edition (電子版) and video version (影視版).  The hardcopies were distributed to the public by placing them inside shops (which agreed to help) for collection by the public free of charge.  There were also some occasions when hardcopies of the books were distributed in street booths.  The e-edition and video version were published via the webpage of the GUHKST as well as its social media accounts in the Facebook, Instagram and Telegram.  Video versions of the books were also uploaded onto Youtube by some Youtube account holders in collaboration with the GUHKST.

6.The books were also promoted to the public through D1 and D2 and/or Wong Hoi-ching attending interviews by the press and other media stations.  One Parent-children Reading Together Session was held on 20 June 2021, and but for the arrest of the defendants, another Reading Together Session would have been held on 25 July 2021.

7.The targets of these books are children, including those as young as 4 years old.  It was printed at the back page of each book that for children aged between 4 and 7, parents and children should read the book together.  For children aged over 7, the children may read the picture books on their own.  In other words, parents of young children were also target of the publications, hoping that they would pass on the information and messages in the books to the children.  Reading guide was published for teaching the parents how to tell the story to their children according to the books.

8.This court held that Books 1, 2 and 3 were seditious publications. These books told the stories between sheep living in the sheep village and the wolves living in the wolves’ village.  The children were told at the outset, according to Book 1, that the sheep were kind, but the wolves were evil.  It was said that the two villages were next to each other, but they were fenced off, and the wolves could not enter the village to harm the sheep.  However, the shepherd of the sheep village left suddenly one day, and the wolves started their vicious plan of occupying the sheep village and eating all the sheep.  Book 1 told the children the dirty tricks the wolves used to harm the sheep, such as a wolf was directed to masquerade as a sheep to mix with them and give them promises, and when the wolves revealed their true-self and started to harm the sheep, how the sheep defended their homeland bravely against the wolves.  Book 2 told the story how the wolves planned to imprison the sheep who had fought the wolves, forcing those 12 sheep to flee from the sheep village by sea, only to find that the wolves were waiting for them at the sea and took them to prison.  Book 3 told the story how a lot of wolves were allowed by the Wolf-Chairman to come to the sheep village to make it dirty and spread diseases. 

9.It is not necessary for me to go any further except to refer back to paragraphs 123 to 128 of the Reasons for Verdict.  In short, I find that the publishers clearly did not recognize that PRC had resumed exercising sovereignty over HKSAR, or that HKSAR was an inalienable part of PRC.  I find that each of these books was a publication with the seditious intention as particularized in section 9(1)(a), (c), (d), (f) and (g).  The seditious intention stems not merely from the words, but from the words with the proscribed effects intended to result in the mind of children. I also find that the publishers had the same seditious intention when they published the books.

10.For reasons given in the Reasons of Verdict, this court held that these books were printed, published, distributed, displayed, etc as a result of the conspiracy between the 5 defendants herein together with Wong Hoi-ching and others, and all of them intended to carry out the conspiracy and in so doing, each of them had the required seditious intention.

Criminal record

11.All defendants have a clear record.

Personal and family background

12.D1 was born on 18 October 1995 in Hong Kong.  She is now 26 years old.  She obtained the degree of Bachelor of Science in Speech and Hearing Sciences from the University of Hong Kong.  During her remand because of the present case, she completed a course in cognitive psychology through distance learning with the Chinese University of Hong Kong.  She worked as a speech therapist prior to her remand. Her family members include her father (a university clerical staff aged 56), her mother (a company accountant aged 55), her younger brother (a Form 4 student aged 16), her grandmother (aged 88 suffering from diabetes and heart disease), and an uncle with medium intellectual disabilities.

13.D2 was born on 9 May 1994 and is now 28 years old.  She graduated from the University of Hong Kong and was a speech therapist by occupation.  Prior to her remand, she lived with her friend apart from her family.  Her family members include her parents and one elder sister.

14.D3 was born on 27 October 1992, and is now 29 years old.  She holds a master degree from the Hong Kong Polytechnic University.  After her parents have divorced, she lives with her grandmother, uncle and cousin.

15.D4 was born on 28 October 1995.  He is now 26 years old.  His family members include his parents and 3 elder sisters.  D4 has moved away from his family to live on his own since his graduation from university, but he is a caring son visiting his parents every week.  D4 is a speech therapist by occupation.

16.D5 was born on 10 October 1994.  He is now 27 years old.  His father has retired.  His mother is a housewife.  He has one elder sister.  He obtained the degree of Bachelor of Science in Speech and Hearing Sciences from the University of Hong Kong.  He is a speech therapist by occupation.

Mitigation

17.Today, counsel for D1 applied for discharge from representing D1 upon instruction.  He nevertheless had pursuant to the direction of this court filed written mitigation on behalf of D1 yesterday.  This court will take those mitigations into account. 

18.D1 addressed this court on her own. Unfortunately, her address was political in nature that could not be allowed.

19.According to the written mitigation provided by counsel for D1, D1 has been described by her family members to be gentle, kind and very filial to her parents and grandmother.  When D1 was still young, she was not only able to take care of herself but also earn money to support the family and her studies, and she still managed to perform exceptionally well in her academic studies and sports. She had also participated in a lot of volunteer’s work including helping the elderly in their recovery after suffering from strokes.  Mitigation letters from D1’s parents, grandmother, two university lecturers and a young patient were submitted, as well as a letter from a colleague of D1’s father (who witnessed the growth of D1).  The cases of HKSAR v Cho Suet-sum Chloe & Another[1] and HKSAR v Tam Tak Chi[2] were cited for reference. 

20.Counsel for D1 stressed that D1 had all along been full of love and filial towards the elderly, and had been working passionately in serving the community.  He pointed out that D1 was a hardworking professional and had earned the respect and praises of her patients and patients’ family members.  Counsel said that D1 had no political affiliation and had no link of any kind with any political party either in Hong Kong or overseas, and that D1 had no financial gain in publishing the books.  Counsel asked the court to be lenient so that D1 could resume using her expertise to take care of the needs of patients and to contribute to the society.

21.D2 was acting in person at the sentencing stage although she was represented by Senior Counsel with junior at the trial.  In the course of her submissions, she had to be stopped at times because she was drifting into matters of political nature.  Before she ended her submissions, she said that she would stand on the side of the sheep, and that her only regret was that she had not published more picture books before her arrest.

22.Counsel for D3 informed this court that he had no instruction to enter into a plea in mitigation for D3, but he had been asked by D3 to read out a two-page statement.  In the statement, D3 claimed that what the GUHKST had done was to bring people together rather than exciting discontent or disaffection among inhabitants of Hong Kong, but the prosecution had the effect of scaring the citizens here.  She said that all defendants before the court today, as speech therapists, knew that they had to inspire and guide children and not to scare or indoctrinate them.  She said that the children should not be scared into submissions.

23.Counsel for D4 pointed out that D4 came from a grass root family living in public rental housing unit, but through his hard work and relentless effort to excel, he obtained scholarship for outstanding students to study in the University of Hong Kong.  He studied diligently and was awarded a prize for his performance in 2017.  He graduated in 2018 and obtained his degree with honours.  He then qualified as a speech therapist and performed exceptionally well in his job and was presented with an outstanding award by his employer.

24.Counsel for D4 stressed that the offence committed by the defendants was not the most serious of its kind.  The GUHKST was not a riotous group advocating secession.  There was no incitement of violence, or incitement to secession or actual use of force, or to engage in any unlawful conduct to disturb the public order by either the GUHKST or by D4.  Counsel also pointed out that the defendants had not raised any issue unnecessarily for trial.  Counsel stressed that D4 had already been remanded in custody for 1 year and 11 days.  He asked the court to be as lenient as possible.

25.Counsel for D5 pointed out that there were only about 1,000 speech therapists in Hong Kong, and that these defendants were elites of the elites.  Counsel said he would not refer to overseas cases in his submissions since the court took the view that overseas cases were not applicable due to the political, social, cultural and legislative differences between different places.  He referred to the local cases of Fei Yi Ming in 1952 and Cho Suet-sum Chloe this year. He submitted that the court in Fei Yi Ming only imposed a fine on the defendants even though the defendants were involved in the publication of a newspaper which was the most important means of communication at that time, and the court had ruled that the report in the newspaper was false. 

26.Counsel for D5 stressed that the defendants had not really challenged the prosecution’s case, and that the defendants should not be given extra punishment for raising the legal challenges.  Counsel also pointed out that D5 did not play a major role in the offence.  D5 was not one of the persons setting up the GUHKST and did not take part in promotion of the books.  Mitigation letters from D5’s employer, his teacher in the university when he studied speech therapy, his colleague (who is a registered nurse), and a certified public accountant who is the daughter of a 91-year-old patient were submitted to the court for consideration.

Reasons for sentence

27.The maximum sentence for the offence committed by the defendants, upon first conviction, is a fine at level 2 (HK$5,000) and imprisonment for 2 years: section 10(1) of the Crimes Ordinance.

28.Before I proceed further, I shall deal with the submission by Counsel for D5 on the case of Fei Yi Ming first.  There is no official report on the sentence imposed on the defendants in that case.  There are reports that they were fined, or that they were sentenced to imprisonment, but they could pay a fine in lieu of imprisonment.  It is not necessary to go further on this point except to say that if counsel suggested that no sentence of imprisonment had been imposed for a sedition offence in Hong Kong prior to 1 July 1997, this submission would be wrong.  Mr Tsang Tak-sing, the former Secretary for Home Affairs of the Government of HKSAR assuming his office in 2007, was sentenced to two years’ imprisonment for distributing pamphlets criticizing the colonial education system inside his school when he was still a student there in 1967.  He served his prison sentence.  Reference to this case can be found in one of the authorities submitted by the defence during the course of this trial[3].

29.On the other hand, Counsel for D5 must be right to say that the sentence to be imposed must depend on the defendants’ culpabilities in the offence and the harm caused by them.  I take the following matters into account.

30.First, the harm caused by the defendants as a result of their offence must be identified at the outset.  The defendants are to be punished not because of the publications or for their words, but because of the harm or the risk of harm that was or would be resulted to the mind of children.  The defendants should never have led the children to think, through the story books, that Hong Kong and PRC (being the sheep and wolves respectively in the books) were completely unrelated to one another, or that the Central Authorities were doing anything illegal or illegitimate when PRC resumed exercising its sovereignty over HKSAR.  What the defendants had done, with children aged 4 and above to be their target, was in effect a brainwashing exercise with a view to guiding the very young children to accept their views and values, ie PRC has no sovereignty over HKSAR which is not part of PRC.  It was said that there was no evidence that the children had been so affected.  This is incorrect because one of the defendants had said in one of the media interviews that she had asked the children how they would respond to the wolves, and one said he would escape and the other said he would fight. This is clear evidence that fear, hatred, discontent and disaffection had been instilled in the minds of the children.  In fact, there is no need to have evidence of this kind.  If a child is told that if he does not fight, he will lose all he has and may even be killed, there is undoubtedly only one answer from him.  Hence, the harm caused by the defendants’ crime is the harm and possible harm to the children in their mindset, and once they had internalized this mindset, the seed of instability will be sown in the PRC and HKSAR. On top of that, the defendants also mobilized other persons sharing the same values as them including parents of the children to impart these ideas which should never have been imparted onto the children to say that PRC had no sovereignty over HKSAR, or that HKSAR was not part of the PRC.

31.Second, the extent of publication was wide.  According to the Newsletter No 3 of the GUHKST, 3,000 hardcopies of Book 1 were printed.  They were distributed in about 75 shops, district counsellors’ offices and organizations.  E-version and reading-together guide were uploaded, and audio book was produced in collaboration with Hang Tan Collage.  It was claimed that Book 1 had reached 217,365 persons, and sharing of the Book via the social media amounted to 1,165 times.  For Book 2, according to Newsletter No 5 of the GUHKST, they were distributed in 30 shops.  There were 3 media interviews in respect of Book 1, and two media interviews in respect of Book 2.  GUHKST had not or had not yet published data on the extent of the publication of Book 3.

32.Third, the conspiracy lasted for a substantial period of time, and it was brought to an end only by the arrest of the defendants.  The conspiracy must have started before Book 1 was published on 4 June 2020, and the conspiracy would have continued after 22 July 2021 but for the arrest of the defendants.

33.Fourth, the publications were done at the time when the political and social conditions in HKSAR were extremely unstable.  The social unrest started to calm down only after the promulgation of the National Security Law on 30 June 2020.  Yet, the defendants continued to publish these picture books, and Book 1 (which was first published about a month before the promulgation of the NSL) was still being promoted or used during the Parent-Children Reading Together Session on 20 June 2021.

34.With these factors in mind, I am going to sentence the defendants.  But before I do so, I wish to say the following.

35.Whatever sentence I am going to impose on you, you will leave custody soon.  I know that, you know that, everybody in this court room knows that because the maximum sentence is only two years, and you will be given one-third discount for your good conduct while you are in prison.  I am sure that you will get that one-third discount from the Commissioner of Correctional Services according to the law as I have no reason to believe that you will misbehave in prison.  The fact that nobody wants to detain you more than necessary is the reason why we have to hold this court session outside the court’s usual business hours. 

36.Defendants, you are going to leave custody soon, but my question to you is: when are you going to leave the prison of your mind?  You or some of you have said that the picture books were intended to be true records of the events so that the facts would not be lost, and that facts had to be preserved to prevent “brainwashing” of children by the authorities through the anticipated patriotic education in school. However, may I respectfully ask all of you to think, if you have not yet done so, the following.

37.Have you really put the true record of events in your picture books?  There is no doubt that the sheep village in the books refers to Hong Kong, and the wolves’ village refers to PRC.  It does not require this court to make the finding by drawing inferences from evidence because you have said so in the Timeline page in Book 1.  If so, have you really put the truth before the children? Can you explain why you didn’t tell the children that the sheep village (ie Hong Kong) was in fact part of the land owned by the wolves (ie PRC), and that the land was taken away from the wolves through military invasion of PRC on the part of the shepherd? Why didn’t you tell the children in the book the reason for which the shepherd left the village?  Why didn’t you tell the children that the shepherd had to return the sheep village to the wolves because they had no right whatsoever to keep it any longer?  Were you really honest when you brushed the true reason under the carpet and hid it from the children by simply telling them “one day, the shepherd suddenly left” as in page 7 of Book 1 so that you could avoid telling the children that PRC was getting back what should never have been taken away from her in the first place?  Was it that you could not tell the children the truth in this respect, or else you would not have any moral high ground to tell your story further to the children, and/or you would not be able to instill the fear and hatred in the minds of the children against PRC? 

38.Furthermore, when you said that you did not want the authorities to “brainwash the children”, then why is it that you had the right to brainwash them?  According to the evidence, one of you had said that children were like white sheet, and you people had to act first.  Of course, you may argue that education is a kind of brainwashing anyway, but if that is your justification, as a teacher, why didn’t you put all the fundamental facts before the children but hid from them?  In Europe, no one can in the exercise of his freedom of speech deny the existence of Holocaust, then why is it that you would have the right, in HKSAR, to deny that PRC has undisputable sovereignty over HKSAR which is an alienable part of the PRC, and instill this kind of ideas into the mind of children who should be taught to love his country and his homeland?

39.Of course, I am nobody to teach you.  But if you stick to the same thinking that motivated all of you to publish the books, you are just locking yourself up in your mind.  You cannot deny the relationship between PRC and HKSAR.  This is the legal position.  This is the internationally accepted position.   It is the historical position.  It is also morally wrong for you to say that Hong Kong and PRC are separate, no matter how you perceive the PRC, the Central Authorities and the Government of HKSAR.  For instance, if you have a bad impression of another person, such as a thief, and you have no doubt that your impression represents the truth, does that give you a right to take away his property?   As I have said, I am nobody to teach you.  As counsel has said, you are elites of the elites. You are smart persons, and you can make up your mind.  I have sidetracked enough, and shall return to the sentence.

40.In this case, I find that the defendants were equal participants in the conspiracy.  While some of them had done more work in relation to the printing and publication of the books, I shall sentence all of them on the same basis.

41.In my judgment, the gravity of this case is no doubt more serious than the case of Cho Suet-sum Chloe.  I shall therefore adopt a starting point of 21 months’ imprisonment.

42.I have considered all the mitigation that has been urged upon me.  I agree that the defendants have been co-operative in limiting the scope of the trial to the minimum.  I also take into account their clear record.  Other than these two points, I find no other effective mitigation.  To reflect the valid mitigation, I shall reduce the sentence by two months.

43.For these reasons, each defendant is sentenced to 19 months’ imprisonment.