HKSAR v. Lai Chee Ying and Others

Press Summary (English)

Press Summary (Chinese)

HCCC 51/2022

[2023] HKCFI 3337

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

CRIMINAL CASE NO 51 OF 2022

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R U L I N G

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Introduction

1.The sole question to be determined by this court is whether the first count on the indictment (“Count 1”) brought against the defendants is time barred.

2.The prosecution case is that Count 1 is not time barred whilst the defence contends otherwise. If the charge is time barred the court has no jurisdiction to deal with the charge.

The Charge

3.Count 1 is a conspiracy to commit sedition (“the Sedition Charge”), contrary to ss.10(1) (c), 159A and 159C of the Crimes Ordinance, Cap. 200 (“CO”). It is pleaded as follows:

“

STATEMENT OF OFFENCE

Conspiracy to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance, Cap. 200.

PARTICULARS OF OFFENCE

LAI Chee-ying, Apple Daily Limited, Apple Daily Printing Limited and AD Internet Limited, between the 1^st day of April, 2019 and the 24^th day of June, 2021, both dates inclusive, in Hong Kong, conspired together and with CHEUNG Kim‑hung, CHAN Pui-man, LAW Wai-kwong, LAM Man‑chung, FUNG Wai-kong, YEUNG Ching-kee and other persons, to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications, having an intention:-

(a) to bring into hatred or contempt or to excite disaffection against the Central Authorities or the Government of the Hong Kong Special Administrative Region;

(b) to excite inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established;

(c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong;

(d) to raise discontent or disaffection amongst inhabitants of Hong Kong;

(e) to incite persons to violence; or

(f) to counsel disobedience to law or to any lawful order.”

The Time Limitation

4.The defence challenges the jurisdiction of the Court to hear and determine the Sedition Charge on the ground that the prosecution had not begun within 6 months after the offence was committed and the prosecution of that charge is time barred by s.11(1) of the Crimes Ordinance read with s.159D of the CO.

Section 11 of the CO reads:

“(1) No prosecution for an offence under section 10 shall be begun except within 6 months after the offence is committed.

(2) No prosecution for an offence under section 10 shall be instituted without the written consent of the Secretary for Justice.”

Section 159A of the CO says:

“Subject to the following provisions of this Part, if a person agrees with any other person or persons that a course of conduct shall be pursued which, if the agreement is carried out in accordance with their intentions, either—

(a) will necessarily amount to or involve the commission of any offence or offences by one or more of the parties to the agreement; or

(b) would do so but for the existence of facts which render the commission of the offence or any of the offences impossible,

he is guilty of conspiracy to commit the offence or offences in question.”

and s.159D(1) of the CO provides:

“(1) Where—

(a) an offence has been committed in pursuance of any agreement; and

(b) proceedings may not be instituted for that offence because any time limit applicable to the institution of any such proceedings has expired,

proceedings under section 159A for conspiracy to commit that offence shall not be instituted against any person on the basis of that agreement.

(2) Any prohibition imposed by any enactment on the institution of proceedings for any offence otherwise than by, or on behalf or with the consent of, the Secretary for Justice or any other person also applies in relation to proceedings instituted under section 159A for conspiracy to commit that offence.”

5.By reading s.11 and s.159D of the CO together, the time for bringing a prosecution under s.10 of the CO is limited to 6 months from the date of the alleged offence.

Background

6.There is no dispute between the parties as to the underlying facts. By 13 December 2021, the defendants were charged with three offences. It is not necessary for the purposes of this decision to set out the original charges in detail. In summary two of those charges were offences against the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (NSL) and the other one was a conspiracy to pervert the course of justice. The next return date for the defendants to appear before the magistrate was 28 December 2021.

7.In a letter dated 13 December 2021 the prosecution wrote to the First Clerk of West Kowloon Magistrates’ Courts (copying the solicitors of the defendants) indicating their intention to apply for an amendment of an existing charge and the addition of the Sedition Charge. The letter stated inter alia that the prosecution intended to seek the committal of all charges (including the Sedition Charge) on the next Return Day on 28 December 2021 and that the defendants were invited to indicate their pleas to the charges on that occasion. The letter, the amended and additional charge sheet together with the relevant consents of the Secretary for Justice (“SJ”) were received by the learned Magistrate on 14 December 2021, the following day and copies of the same documents were served on the legal representatives of all the defendants on that same day.

8.On 28 December 2021, Mr Lai (D1) who was in goal custody and was brought to court for the Return Day and appeared before the magistrate. The corporate defendants (D2-D4), however, were absent and not legally represented. At the Return Day, the legal representatives of D1 did not object to the prosecution’s application for amendment and addition of charges. The learned magistrate therefore granted the amendment and addition of the respective charges in respect of D1. On the next Return Day on 10 February 2022, D2-D4 attended before the court together with their legal representatives. On the application by the prosecution, the learned magistrate granted the similar amendment and addition of charges in respect of D2-D4 without objection from their legal representatives. Eventually, on 17 May 2022 all defendants were committed to the Court of First Instance for trial on all charges including the sedition charge.

9.On the first two days of trial, this court heard arguments on the issue of whether the sedition charge is time barred.

Grounds of Challenge

The time-bar argument

10.The defence submits that the sedition charge was time barred after 1 October 2019, 6 months after 1 April 2019, the first date mentioned in the charge (the conspiracy argument). Alternatively, the charge was time barred after 24 December 2021, 6 months after the last date of the charge being 24 June 2021 (the appearance of the defendant in court argument).

11.Great emphasis was placed by the defence that the prosecution on the Sedition Charge only began on 28 December 2021. Therefore, as the prosecution was not begun before 1 October 2019 or alternatively before 24 December 2021, it was time barred.

12.The defence submits that failure to comply with the restriction imposed by ss.11 and 159D of the CO goes to jurisdiction and the lack of jurisdiction cannot be cured by the agreement, waiver or even a plea of guilty by a represented defendant See R v Syed Ahmad Noh [1985] 1 HKC 424, 426.

The conspiracy argument

13.The defence argues that s.159D(1) of the CO was enacted to impose time limits for instituting proceedings for consummated conspiracies if the substantive offences were subject to time limits of their own. By reason of s.159C it being a conspiracy to commit sedition, it is classified as an indictable offence.

14.Section 159D(1)(a) of the CO reflects the law that a conspiracy does not “merge” with the substantive offence (the object of the conspiracy) when that substantive offence has been committed. Conspiracy charges are frequently brought in cases where the object of the agreement (though itself an offence if committed by one person) has been achieved[1]. The Law Commission in its 1976 report called this kind of conspiracies “consummated conspiracies[2] ”

15.The defence states that s.159D of the CO was enacted in 1996 upon the recommendation of the Law Reform Commission in 1994 on Codification: The Preliminary Offences of Incitement, Conspiracy and Attempt. The recommendation of the Law Reform Commission was in turn based on the 1976 report of the Law Commission in England Conspiracy and Criminal Law Reform (chaired by Cooke J). Section 159D is an anti-abuse provision. Insofar as there is any doubt as to the construction of the clear words in s.159D of the CO, §1.75 of the Law Commission Report would be helpful to clear up any confusion:

“It is not in accordance with our basic approach to conspiracy that charges of conspiracy should be used in this way to circumvent restrictions placed upon the prosecution of substantive offences. If an offence has been committed for which prosecution is statute barred we do not think that this legislative restriction should be circumvented by using the inchoate offence of conspiracy nor do we think that a necessary consent to prosecution should be overridden in the same way. We therefore recommend that conspiracies to commit offences should be subject to the same procedural limitations as to time and consent as the offences themselves … Our recommendation is, therefore, that where an offence has been committed and prosecution for the offence is statute barred no charge of conspiracy based upon an agreement to commit that offence should lie.”

16.Mr Robert Pang SC, for D1 contends that a conspiracy is “consummated” upon the commission of the first substantive offence pursuant to the conspiracy. The time limit starts to run from the “consummation” of the conspiracy upon the commission of the substantive offence. It does not re-start again upon every subsequent commission of the substantive offence pursuant to the already “consummated” conspiracy.

17.In the Sedition Charge, the conspiracy alleged is a conspiracy to print, publish, sell, offer for sale, distribute, display and/or reproduce seditious publications. The conspiracy was “consummated” upon the commission of the first substantive offence under s.10(1)(c) of the CO, ie the printing, publishing, selling, offering for sale, distribution, displaying and/or reproduction of the first alleged seditious publication on 1 April 2019. Therefore, the time under s.159D(1) of the CO (read with s.11 of the CO) started to run from 1 April 2019. The subsequent 160 publications in this case with the last publication on 24 June 2021 would not “consummate” the conspiracy again and again.

18.Under s.159D(1) of the CO, what triggers the running of time is not the continued existence of the conspiracy but the first execution of the object of conspiracy (ie its “consummation”). The relevance of s.11 of the CO is that it determines the length of the limitation period. Therefore, the time limit under ss.11 and 159D(1) of the CO expired after 6 months from the “consummation” of the conspiracy on 1 April 2019, ie after 1 October 2019.

19.As the prosecution was only instituted and begun on 28 December 2021 for D1 and 10 February 2022 for the corporate defendants, the Sedition Charge is time barred.

The appearance of the defendant in court argument

20.The alternative argument for the defence is that if this Court does not accept that the time limit for prosecution had expired on 1 October 2019 and the conspiracy continued until 24 June 2021, the prosecution’s last date for prosecution was on 24 December 2021, six months after the end of the conspiracy in the Sedition Charge on 24 June 2021.

21.In their first written submissions, the defence sought to draw a distinction between “begun” and “instituted”. It was submitted then that the deliberate use of the different words between when a prosecution is “instituted” (under s.11(2) and when a prosecution is begun (under s.11(1)) must be construed as having different meanings and that was the legislative intent in using two different words. Reliance is placed by the defence on the following cases:- R v Elliott (1985) 81 Cr App R 115; R v Whale [1991] Crim LR 692; R v Bull (1994) 99 Cr App R 193; and R v Amersham Juvenile Court, ex parte Wilson [1981] QB 969 for the different meanings.

22.However, during oral submission Mr Pang disavowed his original position. Instead, it is now submitted that the two words “begun” and “instituted” bear the same meaning and both of them refer to the time when an accused first appears in court in answer to the charge in question. Reliance is placed on R v Welsh & Ors [2016] 4 WLR 13. It is further submitted that at the time when the then Sedition Ordinance, Cap. 217 (containing what had since become the present ss.10 & 11, CO) was enacted, s.26 of the Magistrates Ordinance, Cap. 227 (“MO”) had already existed. Therefore, the Legislature must have intended that s.11(1) of the CO and s.26 of the MO, by their different formulations, should have different meanings; otherwise the former would be otiose. The glaring difference being the words “begun” in s.11(1) of CO and “making of complaint or laying of information” laid in s.26 of MO[3].

23.It is now submitted on behalf of the defendants that even if their argument on “continuing offence” was rejected so that the time did not start to run until after 24 June 2021 (the last date of the Sedition Charge), the prosecution of the Sedition Charge would still had expired after 24 December 2021. As such, the charge would still be time-barred as against D1 who only appeared in court in answer to the charge on 28 December 2021. Similarly, the Sedition Charge would also be time‑barred as against D2-D4, who only appeared in court on 10 February 2022 when the charge was read to them. As a result, the Court has no jurisdiction to try the Sedition Offence in relation to any of the defendants.

Prosecution Submissions

24.Mr Chau on behalf of the prosecution submitted that a common sense and ordinary approach should be taken to understand the words ‘begin’ and/or ‘institute’. The prosecution as required by the statutory provisions in s.11 and/or s.159D does not require that an accused appear or is brought to court to answer to the alleged offence. The time the prosecution begins or is instituted against a defendant is the time the charge or papers containing the charge is filed or lodged at the Magistracy which constitutes the laying of the charge.

25.In this case, Mr Chau submitted that the prosecution was begun when the charge was laid and lodged in the Magistracy on 14 December 2021 when the relevant documents, referred to in the 13 December 2021 letter, were delivered to the West Kowloon Magistrates’ Court (the Magistracy). Moreover, in the afternoon of 14 December 2021, solicitors acting for the defendants collected their copies of the charges and the relevant documents from the Wan Chai Police Station. It is therefore argued by the prosecution that the charge was indeed properly filed, served or lodged and consequentially laid which amounted to “beginning” and/or “instituting” the prosecution of the Sedition Charge.

26.The prosecution contends that contrary to D1’s submissions, there is nothing in the context and language of ss.11 and 159D of CO to displace the ordinary understanding of the words “begin” and/or “institute” when used in the context of starting a prosecution. While different words may be used in other statutory provisions (such as “commence” in s.14B of the Criminal Procedure Ordinance), it is submitted that the words “begin” and/or “institute” in the present provisions under consideration should indeed attract the ordinary meaning of such words as understood in light of the usual modes of commencement of prosecution.

27.The prosecution criticizes the defence’s stance that the prosecution only begins when a defendant appears or is brought to court to answer a charge. The defence’s reliance on R v Amersham Juvenile Court, ex parte Wilson [1981] QB 969 was misplaced because as the prosecution points out the issue before the court was whether a defendant who was charged by the authorities when he was under 17 but only appeared in court after he attained 17 should be entitled to the benefit of juvenile protection. The focus of the court in reaching its view as to the meaning of the word “begun” in the relevant juvenile legislation was therefore the fixating of the age of the defendant(s) as brought before the court.

28.Such analysis had nothing to do with any time bar. The provision which was considered uses the word “begun” for persons between the age of 17 and 18, that is those who attained the age of 17 after the proceedings in respect of a young person were “begun”, etc., and she/he attained the age of 18 before the conclusion of the proceedings. In this context, the age of the defendant is of paramount importance.

29.The reason why the judgment went on to say that properly construed the word “begun” in the provision did not refer to the time when information was laid or a charge preferred is readily understandable, because the Court went on to say at 974C: -

“We have no doubt that it should be so construed, particularly bearing in mind the manner in which care proceedings are begun. It is on the defendant first appearing or being brought before a court that his age is fixed for the purpose of all these provisions.”

30.Support of the Prosecution’s stance that to begin or institute proceedings does not require an accused appear or be brought before a court to answer to the alleged offence can be found in the case of R v Kennet Justices, ex parte Humphrey and another [1993] Lexis Citation 1537 where the Prosecution had decided to charge the accused with less serious offences than what he was originally charged with and they wrote to the clerk of the justices with a copy to the defence attaching the fresh charges. The letter arrived at the magistrates’ court within the required time limit but the applicants did not appear in court until after the six months had expired. The Queen's Bench Division held that the information was laid within the six-month time limit. The Court said that:

“… By sending the letter and its enclosures Mr Knell informed the justice clerk of his intention to prefer the reduced charges in substitution for the charges which then existed. Although the letter was expressed in terms of what was to be done at the next appearance of the defendants before the court, it and its enclosures constituted the laying of the necessary informations. In so concluding I am in particular influenced by the passage in which Lord Roskill said that in many cases an information is laid when the Clerk to the Justices is informed by the police of a charge which it was proposed to bring against a defendant later the same day. I see no distinction between a police officer or prosecutor informing the Clerk to the Justices of an intention to charge a defendant with a particular offence later that day and Mr Knell informing the Justice's Clerk by letter and enclosures of an intention to charge the applicants at a later date. Each fulfils the necessary requirements.

That being so, the informations were laid within the six month time limit. It matters not that the applicants were not charged within the six months, nor that their appearance before the court to answer to those charges was outside the six months. Section 127 does not impose a time limit for the first appearance of a defendant before the court to answer a charge, nor does it impose a time limit on the making of a charge. All that it imposes is a limit of time on the laying of an information.”

31.The prosecution submitted that the conspiracy argument as raised by the defence is incorrect. The prosecution stance is that the conspiracy covered the whole period of the charge from 1 April 2019 to 24 June 2021 which included the period from the first alleged seditious publication to the last publication. Therefore, it is illogical for the defence to argue that time should start to run on 1 April 2019 when the relevant conduct and/or overt acts continued throughout that period and until the cessation of Apple Daily on 24 June 2021. The time should therefore only start to run from 24 June 2021. The prosecution relied on the case of HKSAR v Chen Keen (2019) 22 HKCFAR 248 at para 58 and HKSAR v Li Li Mua (2001) 4 HKCFAR 123, at 129G-J.

Discussion

(1)  The conspiracy argument

32.We turn first to deal with the conspiracy argument. The prosecution was mounted on the basis of a conspiracy that existed between the starting and end dates as mentioned in the Sedition Charge.

Continuing offence and time limitation

33.As pointed out by the Court of Final Appeal (CFA) in Chen Keen’s case conspiracy is a continuing offence. The offence of conspiracy is aimed at the agreement but not the carrying out of the agreement. While a conspiracy is completed upon the making of the agreement, it is capable of being a continuing offence. The CFA stated at paragraph 53:-

“As mentioned, a conspiracy is capable of evolving. Specific dishonest means may be agreed upon by the conspirators after the original conspiratorial agreement was first made. New co‑conspirators may join in the conspiracy. The same set of facts may, as a matter of law, give rise to more than one conspiracy, or several sub-conspiracies under an overarching conspiracy. Whilst the essence of a conspiracy is the making of the prohibited agreement such that, strictly speaking, the offence is committed when the agreement is made, the law regards a conspiracy as a continuing offence beginning when the conspiratorial agreement was first made and continuing until it ended. Very often (and the present case is one such example), a conspiracy is charged as a continuing offence over a specified period, instead of an offence on a specified (or an unknown) day. During the continuation of the conspiratorial agreement, new or additional specific dishonest means may be agreed upon by the conspirators, new co-conspirators may join in the conspiracy, and so forth. From a prosecution point of view, in a complicated case, the permutations and combinations can be many. It is important for the prosecution to ascertain the facts carefully and decide what conspiracy/conspiracies they wish to charge, and to plead and make clear their case accordingly. For at trial, the prosecution will be required to prove by evidence the conspiratorial agreement(s) they have chosen to indict.”

34.The question of when time starts to run in a continuing offence was considered by the CFA in Li Li Mua’s case. The CFA held that the limitation of time does not start to run in the case of a continuing offence until the period has ended. Bohkary PJ, who gave the judgement of the CFA, said[4],

“As to the time for initiating a prosecution, the general position may be stated as follows. Where a non-continuing offence is concerned, a prosecution may be initiated as soon as the commission of the offence has been completed or, subject to any time-limit for initiating a prosecution, at any time thereafter. And any such time-limit runs from such completion.

The general position is different where a continuing offence is concerned. A prosecution may be initiated on any day during the period over which the offence is continuously committed or, subject to any time-limit for initiating a prosecution, at any time after that period. And any such time-limit will not start to run until after such period has ended. Put in terms of a provision like s.46(2) of the Immigration Ordinance (which uses the word ‘arose’), a sufficient basis for prosecuting arises each and every day falling within such period. In A-G v Cheung Kam Ping [1980] HKLR 602 (a decision to which Gall J referred and would have been bound), the Court of Appeal held that the word ‘first’ is to be read into s.46(2) so that the time-limit which it sets runs from the time when the matter of complaint or information first arose. I see no warrant for reading in the word ‘first’. And I would overrule the Court of Appeal's decision that it is to be read in.”

35.Based on Li Li Mua’s case, we are unable to accept Mr Pang’s argument that a conspiracy is “consummated” upon the commission of the first substantive offence in pursuance to the conspiracy (“the first offence”). The situation may be different if the conspiratorial agreement was about the commission of only a one-off offence. However, as we understand it the prosecution in the present case alleges that the defendants conspired to commit more than one act in violation of s.10, CO. If the prosecution’s case were true, then the Sedition Charge would not have been “stale” after the commission of “the first offence”, as the conspiratorial agreement would still be very much alive.

36.We draw comfort from the fact that our aforesaid view is supported by the judgment of the Court of Appeal in HKSAR v Kong Wai Chun, CACC 252/2009 (unreported, dated 20 May 2011) which Mr Pang, in accordance with the highest tradition of the bar, has fairly drawn to our attention. In that case, the charge in question was a statutory conspiracy to sell infringing copies of copyright works which was subject to a 3-year time limitation. The Court of Appeal held that the three year period would not commence to run until the cessation of the conspiracy.

Per incurium

37.Mr Pang relies on s.159D(1) of the CO and submits that the phrase “an offence” in subsection (1)(a) refers to the first substantive offence carried out in pursuance of the conspiracy charged. In case there is a time limitation, so the argument goes, the time starts to run upon the completion of that first substantive offence. Therefore, after the time limitation has expired, “proceedings under s.159A for conspiracy to commit that offence shall not be instituted against any person on the basis of that agreement.”  It is submitted that since s.159D(1) had not been expressly addressed by the Court of Appeal in HKSAR v Kong Wai Chun, that case was decided per incurium.

38.As to the above contention, we note first that the per incuriam exception to the principle of stare decisis is a notably narrow one: Morelle LD v Wakeling & Anor [1955] 2 QB 379. In Solicitor (24/07) v Law Society of Hong Kong (2008) 11 HKCFAR 117, the CFA says that even where the Court of Appeal concluded that its previous decision was plainly wrong, it should take all circumstances into account before deciding to depart from it, including the nature of the issue, the length of time it had stood, the extent of its application, whether the issue was likely to be before the CFA or the Legislature and whether the matter was best left to them, and whether and the extent to which failure to depart from it would occasion injustice in the case in question and similar cases. In that light, it must be rare for a lower court to declare that the decision of the Court of Appeal is “plainly wrong” and should not be followed.

39.Secondly, with respect, given the continuing nature of a conspiracy charge we can see no reason, either in logic and as a principle, why the phrases “an offence” and “that offence” in s.159D(1)(a) and (b) respectively should be so narrowly construed as to mean “the first offence” when the conspiratorial agreement was to carry out more than one offence.

40.Thirdly, coming back to the judgment in HKSAR v Kong Wai Chun, the basis for the Court of Appeal to say that the conspiracy charge had not been time-barred was that the conspiracy was a continuing offence and it therefore followed that the three-year period would not commence to run until the cessation of the conspiracy. We find not only that the reasoning of the Court of Appeal is wholly convincing, but also that it is consistent with the latter decision of the CFA in Li Li Mua’s case. We consider that the absence of any express references to s.159D (or s.159A for that matter) in the judgment of  HKSAR v Kong Wai Chun provides no justification whatsoever to suggest it was decided per incurium. To the contrary, in our judgment HKSAR v Kong Wai Chun remains a good authority binding on this court.

41.Fourthly, we can see no unfairness or injustice to the accused if the time only starts to run from the last, rather than the first date of the conspiracy charge, so long as there is sufficient evidence to support the prosecution’s case that there was one single conspiratorial agreement covering the whole of the charge period. Unlike the case in R v Blamires Transport Services Ltd [1964] 1 QB 278 cited by Mr Pang, by the operation of ss.11(1) and 159D(1) of the CO, the Sedition Charge is still subject to a time limitation of 6 months.

Conclusion

42.In our judgment, in the circumstances of this case the limitation of time should start to run on 24 June 2021 the last date of the charge, so that the prosecution of the defendants would be time-barred after 24 December 2021.

(2)  The defendants’ appearance in court argument

Matter of construction

43.We are of the view that the issue as to when a “prosecution” was “begun” or “instituted” depends on the context in which those words are used and the purpose of the provisions Director of Public Prosecutions v Cottier [1996] 2 Cr App R 410, at 416. In this regard, the words of Lord Widgery CJ in R v South Estern Magistrates’ Court, Ex Parte Beaton [1980] RTR 35 bear repetition:

“... one must avoid rules of thumb in subjects of this kind, and we must educate ourselves to look at each case on its own facts.”

44.Therefore, overseas case authorities have to be read with caution, as their statutory schemes and criminal procedure may not be the same as ours. For example, in R v Welsh & Ors [2016] 1 Cr App R 8, a case heavily relied upon by Mr Pang in his oral submission, the issue before the court was as to when “proceedings” were “instituted” in respect of indictable offences for the purpose of s.4(5) of the Criminal Law Act 1977. That provision reads:

“no proceedings for an offence triable by virture of section 1A above may be instituted except by or with the consent of the Attorney General.”

Having considered the legislative scheme of criminal procedures, including “plea before venue hearing”, the English Court of Appeal concluded:

“54. In our view consent is required to be obtained prior to the sending pursuant to section 51 the Crime and Disorder Act 1998. Whilst entry in the register is within the protection afforded by section 25(2), close analysis of the statutory provisions reveals that a sending under section 51 is not, and proceedings must have been instituted at this stage.”

Whilst that case may on its face assist the defence, we make the following observations:

(1)  the English Court of Appeal, following Director of Public Prosecutions v Cottier, also treated the issue as one of statutory construction;

(2)  the legislative scheme governing criminal procedure is different from ours. Among other things we have neither a “plea before venue hearing” nor a “sending” in Hong Kong; and

(3)  the key words in that case was “proceeding”, which was interpreted not to include “purely administrative process which follows arrest, charging and remand in custody or bail” which was exempted by s.25(2) of the Prosecution of Offences Act 1985. There are, however, no general provisions in Hong Kong similar to those of s.25(2) of the Prosecution of Offences Act 1985;

(4)  in the present case, we are concerned with the meaning of “prosecution” and when it was “begun” for the purpose of s.11(1) of CO.

Therefore, in our view, the case does not in fact lay down any general rule as to when a prosecution is “begun”.

45.That the rules of statutory construction are well-established is recently reiterated by the CFA in HKSAR v Chan Chun Kit (2022) 25 HKCFAR 191. Words are construed in their context and purpose. Context here is to be taken in its widest sense and includes other statutory provisions and the general law: see also HKSAR v Cheung Kwun Yin (2009) 12 HKCFAR 568 and Town Planning Board v Town Planning Appeal Board (2017) 20 HKCFAR 196.

Context and purpose

46.In Hong Kong, the constitutional framework as set out in the Basic Law (“BL”) provides a clear division of function and duty between the Prosecution and the Courts. The exercise of judicial power belongs to the courts of the HKSAR (BL 80) and the courts’ independent exercise of their judicial power is constitutionally guaranteed by BL 85. On the other hand, the control of criminal prosecutions is the province of the Department of Justice (“DoJ”) (BL 63). Needless to say, the Secretary for Justice, as the head of the DoJ, bears the ultimate responsibility for its functions and duties.

47.In order to inform the public as to how the prosecutorial discretion is to be exercised, the DoJ has published the “Prosecution Code”. Para. 6 of the code says:

“6. Consent to Prosecute

6.1  The Secretary for Justice must give his or her consent before certain kinds of prosecutions can be undertaken. This is a safeguard to ensure that an appropriate level of scrutiny is exercised in particular cases. Accordingly, a prosecutor should consider if consent is required by law. The power to consent has been delegated to the Director of Public Prosecutions and senior prosecutors in some cases.”

Section 11(2), CO is an example of the aforesaid safeguard. From a plain reading of that section, the obtaining of the SJ’s consent is not in itself the commencement of the prosecution but a condition precedent which must be fulfilled before the “institution” of the prosecution.

48.As regards s.11(1) of the CO, we have no difficulty with the notion, and we do not think there is any dispute, that its purpose is to prevent the prosecution of “stale” offences and to prompt the prosecution to act in a timely fashion. Since we have already discussed the issue as to when the limitation period for the Sedition Charge started to run, we are not going to repeat the same here.

49.Turning to the legislative history of the relevant provisions, it is noted that the current ss.10 & 11 of the CO first appeared as ss.4 & 5 of the then Sedition Ordinance, Cap. 217 which came into operation on 2 September 1938. Section 5 of the Sedition Ordinance read as follows:

“5(1) No prosecution for an offence under section 4 shall be begun except within six months after the offence is committed.

(2)  A person shall not be prosecuted for an offence under section 4 without the written consent of the Attorney General.”

50.As at 31 December 1972, the Sedition Ordinance became incorporated into the CO which was a consolidation ordinance. Section 11 of the CO then read:

“(1) No prosecution for an offence under section 10 shall be begun except within six months after the offence is committed.

(2)   No prosecution for an offence under section 10 shall be instituted without the written consent of the Attorney General.”

That was the first time that the word “instituted” was introduced into subsection (2) of that provision. In this connection, we note also that the word “instituted” were used in other ordinances requiring the consent of the Attorney General (“AG”) which have been consolidated into the Crimes Ordinance. See for example:

•  s.6 of the Incitement to Disaffection Ordinance[5];

•  s.5(3) of the Explosive Substances Ordinance[6]; and

•  s.5(2) of the Punishment of Incest Ordinance[7].

From the aforesaid, an inference can be drawn that, by inserting the word “instituted” into s.11(2) of the CO, the Legislature intended to achieve standardization of the phraseology used in the CO whenever an offence requires the AG’s consent rather than to change the substance of the law. This inference, in our view, is strengthened by: (a) the nature of the Crimes Ordinance as a consolidated ordinance: see Craies on Legislation, 11^th ed, at para 1.9.3; and (b) the following speech made by the then Attorney General when he moved the second reading of the Crimes Bill 1971[8]:

“Sir, the object of this bill is to consolidate into readily accessible form 20 old English Acts of Parliament, which are part of the law of Hong Kong by virtue of the Application of English Law Ordinance, and three Ordinances[9], dealing with various somewhat rare offences against the Crown and with piracy. These enactments have been reproduced closely and no changes of substance have been made either to the ingredients of the various offences or to the maximum penalties which can be imposed for them.

However, the opportunity has been taken to delete a number of obsolete or unnecessary provisions and to modernize the older phraseology, some of which goes back to the 14^th century. The table of repeals and replacements, which is annexed to the printed bill, indicates how the old enactments have been dealt with in the bill.

It may well be that in the future it will be possible to add further types of criminal offence to the framework provided by this bill so as to make our criminal law easier to find.”

51.Since the incorporation of the Sedition Ordinance into the CO in 1972, apart from the change of “Attorney General” to “Secretary of Justice” in 1997 as part of the adaptation exercise, there has been no change to s.11(2) of the CO. However, there are no definitions of the words “prosecution”, “begun” or “instituted” contained in the CO.

52.In the wider context, the Magistrates Ordinance (Ord 31 of 1932) came into operation on 1 January 1933, which was before the Sedition Ordinance. Its Part II governs procedure in respect of summary offences and Part III in respect of indictable offences. It is noted that back in 1933, s.26, which provides for a general time limit for summary offences, was already there.

53.In 1984, the Criminal Procedure (Preliminary Proceedings on an Indictable Offence) Ordinance 1983 amended the Magistrates Ordinance to eliminate the need to hold a preliminary examination unless the accused required such an examination. The effect of s.80A of  the MO as amended is such that committal proceedings began as soon as an accused appeared or was brought before a magistrate upon allegation of the commission of an offence in respect of which a magistrate was “authorised, empowered or required to commit him to prison until delivery by due course of law”: Attorney General v PH O’Donnell Esq, Magistrate [1985] 2 HKC 283.

54.The issue before this court is whether the commencement of the committal proceedings is equivalent to the commencement or beginning of the “prosecution”.

55.Now, for the purpose of the present application, it is common ground that by s.159C of the CO, the Sedition Charge is an indictable offence and as such it is governed by Part III of the MO. Nevertheless, by a plain reading of s.8 and s.72[10] of the MO, we are of the view that criminal proceedings for both summary offences and indictable offences are commenced by laying of an information which may occur before an accused appears or is brought to court. This view is fortified by Halsbury’s Laws of Hong Kong, Criminal Procedure, at Paragraph 130.634:

“Criminal Proceedings for an indictable offence are commenced in almost all cases by laying a complaint or information before a Magistrate. The principle exception to this is the commencement of proceedings for indictable offence by way of voluntary bill. Commencement of criminal proceedings for a summary offence is by complaint or information.”

Further at paragraph 130.635:

“An information is an allegation of a Criminal Offence or a charge. An information alleging the commission of an indictable offence must be in writing and must contain or consist of a statement of the offence alleged to have been committed, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence. The information need not bear the name of the informant provided it is plain on the face of the information that it must have been laid by an individual and the identity of the informant is readily ascertainable. There is a presumption of regularity as to the laying of an information and the authority of a person to lay an information. It is necessary for there to be prima facie evidence of an irregularity before the presumption is displaced. An information may be laid by placing it before Magistrate but it is sufficient that it be delivered to a clerk in the office of the Magistracy. The information may be laid electronically.”

56.In the MO, an “information” is defined as including a charge and an “indictment” includes a charge: s.2 of the MO. Whilst an information alleging the commission of an indictable offence must be in writing, the only requirement as to its contents is that it “shall contain or consist of a statement of the offence alleged to have been committed, together with such particulars as may be necessary for giving reasonable information as to the nature of the offence”: s.75(1)[11] of the MO.

57.In R v Manchester Stipendiary Magistrate, Ex parte Hill [1983] 1 AC 328 at 345, the House of Lords held the information was laid when it was received at the office of the clerk to the justices by a member of the staff expressly or impliedly authorised to receive it and therefore was timeously laid. R v Manchester Stipendiary Magistrate, Ex parte Hill is adopted and endorsed by the Court of Appeal in SJ v Cheung Kai Yin (No 2) [2016] 5 HKLRD 370, where it is also noted:

“53. Although it does not form part of the reasoning for our decision, it is nevertheless instructive to analyse how the two types of offence are initiated. Summary offences are commenced by the making of a complaint or the laying of an information: see s.8 of the Magistrates Ordinance. However, as with proceedings by way of voluntary bill, there is no requirement for making any complaint or laying any information in respect of a committal for contempt. The respondents were arrested on 25 November 2014 both for the statutory offence of resisting or obstructing a public officer, contrary to s.23 of SOO, and for criminal contempt. As we have seen, the clerk to the Magistrates’Court was informed by two letters on behalf of SJ, dated 6 and 8 January 2015 respectively, that the offence under s.23 of SOO was being withdrawn and proceedings for criminal contempt based on facts said to be “exactly the same” instituted in its place in the High Court. It was also said in each letter that Chow J had already been informed of the Secretary for Justice’s decision.

54. We would observe that had it been necessary, which legally it was not, to make a complaint or lay an information in respect of a committal for contempt in the Magistrates’ Court, or indeed any other court, these letters would arguably have constituted the timeous laying of an information in relation to that offence, even though that may not have been the writer’s intention: see R v Kennett Justices, ex p Humphrey and Wyatt [1993] Crim LR 787.

…

56. … Accordingly, once the information has been received at the office of the clerk to the justices, which today in most cases is likely to be at the magistrates’ court house, the information will, in my view, have been laid. No more is required of the prosecutor to launch the intended criminal proceedings.”

What happens thereafter is not within the province of the prosecutor or the complainant but of the court.

57. He concluded, at 345F-G:

… if your Lordships agree with me that that information is made when it is received at the office of the Magistrates’ Court and is the first step to be taken towards the initiation of the prosecution irrespective of whether it is after receipt the basis of an application for a summons, it follows that in the case of the present appeals each of the informations in question was timeously laid.

58. Accordingly, if the argument is that the time limitation under s.26 of the Magistrates Ordinance is to be borrowed and applied to a committal for contempt, the limitation depends on the timeous making of the complaint or the laying of the information, which information has arguably been laid within 6 months by virtue of the Secretary for Justice’s letters; even though it was not necessary to lay an information as such in respect of the committal for contempt. Equally if the argument is that a committal for contempt requires an application for leave, to which the same 6-month limitation in respect of summary offences should analogously be implied, then it should be recognised that it is a wholly different mechanism.

59. In simple terms, what is required to be done within 6 months in order to commence proceedings for a summary offence is not the same exercise that is required in order to commence a committal for contempt. The former requires the laying of an information: the latter does not. The former does not require the leave of the court: the latter does. Again, such a procedural analogy is difficult to apply when we are not comparing like with like.

60. Furthermore, if the policy behind the 6-month time limitation is that for minor offences, there is an onus on the prosecution to act expeditiously, so that the court, and perhaps also the defendants, know that proceedings are to be instituted and can respond promptly to them, a committal for contempt, particularly a criminal contempt, could hardly be characterised as minor. Moreover, the fact is that the respective letters from SJ were copied to each of the relevant respondents and they would have clearly known of his intentions. Indeed, the defendants will have known from the moment of their arrests that their committal for contempt was one of the possibilities envisaged and, from the moment of their receipt of the respective copy of SJ’s letter, that proceedings for their committal for contempt would be instituted in place of the summary offence, which was to be withdrawn.”

58.We are fully aware that the Court of Appeal in the above‑quoted passages was commenting on a summary offence with time limitation. However, by analogy the rationale behind their comments is also pertinent to an indictable offence subject to a time limitation.

59.Applying the above to the facts of the present case, we have no doubt that the prosecution’s letter together with it annexures constituted a sufficient “information” for the purpose of s.75 of the MO and that it was “laid” when it was received by the Magistrates’ Court on 14 December 2021. The information once so laid, no more was required of the prosecutor and the prosecution had “begun”.

60.By s.72(1) of the MO, once the information has been laid, the magistrate may: (1) issue his warrant to apprehend the accused and to cause him to be brought before a magistrate; or (2) issue his summons directed to the accused requiring him to appear before a magistrate at a time and place to be therein mentioned. Whether it is a warrant or a summons, they are mere process for the purpose of bring the accused before the magistrate: R v Hughes [1897] 4 QBD 614. Neither of these is a matter for the prosecution but a matter for the court. Based on the constitutional framework provided by the Basic Law, however, it is clear to us that the “institution” of a public prosecution must be something which may be done by someone acting with and under the authority of the SJ and is a matter for the SJ at his discretion. As such, the institution of the prosecution must, therefore, be the laying of the information: cf Thorpe v Priestnall [1897] 1 QB 159. This is supported by Rockall v Department for Environment, Food and Rural Affairs [2007] 1 WLR 2666 where it was decided that laying of the information was the act which determined whether or not the time limit had been met and proceedings had been instituted.

61.Thus, we agree that despite the use of the different words, “begun” and “instituted”, in s.11(1) & (2) of the CO, the two subsections  actually refer to the same instance. However, we disagree with the defence that the Legislature intended to adopt a different test than s.26 of the MO by not making express reference to “making of any complaint or laying of any information” as the starting point for the purpose of time limitation. If that had been the legislative intent, the Legislature would have provided a definition of “begun” or “instituted”. Bearing in mind that the purpose of s.11(1) & (2) of the CO are important safeguards for an accused, we are of the view that if the Legislature had intended to ascribe different meanings to the two words, it would not have failed to provide definitions for them.

62.Furthermore, the defence’s contention that the prosecution can only begin when a defendant appears in or is brought to court to answer the charge would lead to surprising results. We ask rhetorically, what if before a particular defendant cannot appear in court due to his/her hospitalization, out of the jurisdiction or absconding and can only be brought to the Court after the time bar? According to the defence, in such cases the defendant could no longer be tried as the prosecution would be time barred at the time when he appeared before the court. We are not persuaded this was at all the intention of the Legislature.

63.In our judgment, s.11(1) and s.11(2) of the CO serve different purposes and address different aspects of a prosecution. Subsection (2) looks from the perspective of the prosecuting authority (the laying of information) and it focuses on the consent of the SJ as a procedural safeguard against abuse. Subsection (1) on the other hand looks from the perspective of the receiving end (the information being “laid”) and it ensures the prompt commencement of the prosecution.

Conclusion

64.In the circumstances, as the information of the Sedition Charge was received by and laid at the West Kowloon Magistracy on 14 December 2021, ten days before 24 December 2021 after which the charge would have been time barred, we are therefore of the view that the charge is not time barred.

65.Based on all of the above, the application of the defence must fail.

Mr Anthony Chau, DDPP, Mr Ivan Cheung, ADPP (Ag), Ms Karen Ng, SPP, and Ms Crystal Chan, SPP of the Department of Justice, for the Respondent

Mr Robert Pang, SC leading Mr Marc Corlett, Mr Steven Kwan, Mr Albert N.B. Wong, Mr Colman Li, and Mr Ernie Tung, instructed by Robertsons, for the 1^st Defendant

Mr Jon Wong, Ms Natalie Yeung and Ms Joanna Wong, instructed by Sit Fung Kwong & Shum, for the 2^nd to 4^th Defendants