HKSAR v. Tam Tak Chi

CACC 62/2022, [2024] HKCA 649

On appeal from [2022] HKDC 208 and [2022] HKDC 343

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

CRIMINAL APPEAL NO. 62 OF 2022

(ON APPEAL FROM DCCC NO 927, 928 AND 930 OF 2020 (CONSOLIDATED))

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J U D G M E N T

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The Court:

1.This is an application made under section 32(2) of the Hong Kong Court of Final Appeal Ordinance, Cap. 484 for a certificate that the following three questions involving points of law of great and general importance are engaged in the judgment of this Court in [2024] 2 HKLRD 565:

(1)  Are the offences identified in sections 9 and 10 [now repealed] of the Crimes Ordinance, Cap. 200 (“Offences”) indictable offences that must be tried in the Court of First Instance by a judge and jury under the requirements of the Second Schedule, Part I, Paragraph 5 [now repealed] of the Magistrates Ordinance, Cap. 227? (“Question 1”)

(2)  Does proof of the Offences mean the prosecution has to prove an intention on the part of the defendant to incite third parties to violence or public disorder? (“Question 2”)

(3)  If the answer to (2) is “No”, are the Offences unconstitutional because they constitute a disproportionate restriction on free speech or are not prescribed by law? (“Question 3”)

2.For Question 1, the applicant submits that given the importance of the interplay between the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (“NSL”) and local law, it is in the public interest for the Court of Final Appeal (“CFA”) to clarify the matters involved. For Questions 2 and 3, the applicant relies on the common law intention to incite violence or public disorder as a necessary ingredient of the offence of sedition to suggest that the Offences lack legal certainty and are unconstitutional.

3.The respondent opposes the application, saying that the questions raised are essentially the same arguments canvassed before this Court and are not reasonably arguable. Further, it is submitted that given the repeal of sections 9 and 10 of the Crimes Ordinance, Cap. 200 (“the impugned provisions”), the questions do not qualify as questions of law of “great and general importance”.

4.The parties agree that the application be disposed of on paper without an oral hearing. This is our judgment.

5.For present purposes, we will not dwell on the parties’ submissions in length. What we set out below is sufficient to dispose of the application at hand.

6.Question 1 clearly involves issues relating to the statutory interpretation of the impugned provisions[1] and the interplay between the NSL and our local law. We consider that these are points of law of great importance. We also accept, and the respondent does not suggest otherwise, that there are other cases brought under the impugned provisions which are before the court and thus, the resolution of the question would not just impact on the present case. For Questions 2 and 3, given that the impugned provisions are the predecessors of the new sedition offences under the Safeguarding National Security Ordinance (Instrument A305), we are persuaded that these questions also merit the CFA’s determination.

7.We accordingly grant a certificate on the above questions under section 32(2).

Mr Anthony Chau, DDPP and Ms Crystal Chan, SPP, for the Respondent

Mr Philip Dykes, SC, Mr Jeffrey Tam and Mr Ernie Tung, instructed by M/s Ho, Tse, Wai & Partners, for the Applicant