HKSAR v. Best Pencil (Hong Kong) Limited and Others
Read the full judgment text of DCCC 265/2022 on BabelCite. This District Court judgment was delivered on 29 August 2024.
1. The three defendants in this case were jointly charged with one count of conspiracy to publish and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance [1] .
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[English Translation – 英譯本] DCCC 265/2022 [2024] HKDC 1430 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO. 265 OF 2022 ____________________
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____________________ Reasons for Verdict ____________________ A. Background 1.The three defendants in this case were jointly charged with one count of conspiracy to publish and/or reproduce seditious publications, contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance[1]. 2.The first defendant, Best Pencil (Hong Kong) Limited (D1), was a limited company set up in Hong Kong[2]. It was also the registered proprietor, printer and publisher of Stand News, an online media[3], under the Registration of Local Newspapers Ordinance[4]. The second defendant, Chung Pui-kuen (D2), was employed by D1 as the Chief Editor of Stand News from December 2014 onward[5]. The third defendant, Lam Siu-tung (D3), similarly, was employed by D1 from December 2014 onward as a reporter of Stand News and was promoted to Deputy Editor on 1 December 2019. After the resignation of D2 on 1 November 2021, D3 was promoted to Acting Chief Editor and took up the duties of the Chief Editor[6]. 3.The particulars of offence charged against the three defendants were that they:
4.The prosecution relied on 17 articles (articles A1 to A17) as the prosecution basis. They alleged that there was seditious intention in the contents of each of these articles, which were published by Stand News as operated by D1, on its website and social media pages[7]. The prosecution alleged that D2, being one of D1’s directing minds and wills, and serving as the Chief Editor of Stand News, had knowledge of the seditious intention of the articles, and their publication was effected upon his decision, approval, arrangement and/or with his assistance. The prosecution also claimed that, as shown by the evidence, another directing mind and will, as well as the ultimate boss in D1, was Tsoi Tung-ho (“Tsoi”) who was its director. D3 knowingly assisted D2. At a later stage, he even served as the Acting Chief Editor of Stand News in performing the same duties as D2 as described above. The prosecution suggested that an inference could be drawn that there was a conspiracy between the three defendants to publish seditious publications. In an operation conducted on 29 December 2021, D1’s office was searched, and D2 and D3 arrested on the same day. Tsoi left Hong Kong on 17 November 2019, and the Immigration Department had no record of his return to Hong Kong. 5.D1 did not appoint any of its directors, shareholders or legal representatives to attend any hearing. On the other hand, D2 and D3 pleaded not guilty to the charge and stood trial. 6.The prosecution made an application to proceed with D1’s trial in his absence, to be conducted concurrently with the trial of D2 and D3. In support of this application, the prosecution submitted two affidavits dated 29 April 2022 and 20 June 2022 by Senior Inspector Mr Kwan Pok-hang, the officer-in-charge of the case, as factual evidence of the service of documents on D1 for his court attendance. 7.The evidence of Senior Inspector Kwan proved that police officers went to D1’s registered office on 30 December 2021, 18 February 2022 and 6 April 2022 respectively, to leave the Notices of Hearings in order to notify D1 to attend the hearings at the West Kowloon Magistrates’ Courts on 30 December 2021, 25 February 2022 and 13 April 2022, and that on the same dates, the same documents were also delivered to the post box of the registered address of Tsoi, D1’s then sole director. Later, on 12 April 2022, police officers went to the registered office of D1 and left a folder of documents for the transfer of the case to the District Court. D1 did not appoint any representatives to attend any of the hearings in the Magistrates’ Courts. On 13 April 2022, the prosecution made an application to proceed with the proceedings against D1. After hearing the evidence of Detective Police Constable 18083, Principle Magistrate Peter Law was satisfied that the Notices of Hearings and other relevant documents had been served on D1, and that D1 was aware of the time for its appearance in court attendance, but chose not to attend the hearings, abandoning its right to participate in the trial. Principle Magistrate Law ordered the case to be transferred to the District Court. 8.The evidence of Inspector Kwan also proved that for the purpose of notifying D1 of the required attendance at the District Court hearings on 3 May and 23 June 2022, police officers went to D1’s registered office to leave the Notices of Hearings on 15 April 2022 and 31 May 2022 respectively, and served the Notices of Hearing at the post box at Tsoi’s registered address on the same dates. Both of these hearings were handled by me and D1 was absent on each occasion. On each occasion, I accepted the evidence of Inspector Kwan and ruled that under section 827 of the Companies Ordinance[8], the hearing could proceed in the absence of D1 as all the relevant documents had been served on D1 and D1 had been informed of the time of attendance. At the hearing on 31 May 2022 before me, the trial of the three defendants was set down to be heard on 31 October 2022, with 20 days reserved and a pre-trial review was arranged for 6 September 2022. 9.The pre-trial review on 6 September 2022 was heard by Her Honour Judge A Tse. D1 was absent from the hearing. The prosecution submitted the third affidavit by Senior Inspector Kwan as evidence of the service of the Notice of Hearing for notifying D1 of its required court attendance. 10.When the trial of this case commenced on 31 October 2022, D1 had still failed to appoint any representative to attend court. The prosecution submitted that it was not appropriate to sever D1’s trial. 11.In considering whether a trial should be conducted in the absence of D1, I bear in mind the legal principles set out by the Court of Appeal in HKSAR v KWAN Wai-keung & Others (CACC 259/2011), at paragraph 6:
12.As a company limited by shares incorporated in Hong Kong, D1 was a legal entity. It may appoint its directors or legal representatives to appear in court. According to the evidence of Senior Inspector Kwan, except for Tsoi, all those who had been directors of D1 had resigned by 29 December 2021. As at 13 April 2022, Tsoi remained the sole director of D1 and there was no company secretary. Tsoi did not return to Hong Kong after his departure on 17 November 2019. Nevertheless, I find that Tsoi must have been aware of the arrest of D2 and D3 by the police on 29 December 2021 as Stand News had issued a statement for the immediate suspension of operation when the two were still being detained by the police. Undoubtedly, that decision could only have come from the top management of Stand News, and this person must have been Tsoi. I am sure that the progress of this case must have been of concern to Tsoi even if he was outside Hong Kong. Moreover, all Notices of Hearing have been served to the post box of Tsoi’s registered address. 13.At the material time, D2 and D3 performed the duties of the Chief Editor in Stand News in succession. As they pleaded not guilty to the charge, the defence must be that the articles published in Stand News were not seditious publications, and/or that the two did not possess any seditious intention, and/or that a conspiracy did not exist as all the publications were the result of individual decisions. There is no doubt that no conflict of interest exists between the case and defence of D1 and those of the other two defendants; indeed, at the time of the offence, D2 and D3 were employed by D1. As such, Tsoi could have appointed D2 and/or D3 to be the representative at the trial on D1’s behalf. Although it was not incumbent upon D2 and D3 to do so, a significant amount of hearing time would have been saved had D1 been represented by either one of them as it would not have been necessary for the prosecution to call multiple witnesses to prove the facts admitted by D2 and D3 under section 65C of the Criminal Procedure Ordinance[9] in order to discharge the burden of strict proof against D1. I find that, for whatever reason, Tsoi made the decision of his own accord and voluntarily chose not to attend the hearing as a representative of D1, or to appoint any reliable and competent person to represent D1 at the hearing. 14.Moreover, even if I were to adjourn D1’s trial, I would have no reason to believe that D1 would seize the opportunity provided by the adjournment to appoint a representative for court attendance. 15.Furthermore, according to the evidence of Senior Inspector Kwan, the office of Stand News, namely the registered office of D1, was to be put on sale by its owner on 19 September 2022. In other words, D1 would have no registered office for receiving Notices of Hearing and other documents after that date. Therefore, adjourning D1’s trial would only create difficulties in giving D1 further notice to appear in court. 16.In any event, all the relevant Notices of Hearings and documents had been served on D1, but D1, by choosing not to send a representative to attend the court hearings, on its own motion abandoned its right to participate in the trial. On the other hand, as D2 and D3 were represented by a legal team led by Ms Eu SC, D1 could also benefit from this. This is because if D2 and/or D3 were found not guilty, it would essentially be impossible for D1 to be convicted. Therefore, even if the trial is held in absentia, I do not see that D1’s interests would be prejudiced. 17.For these reasons, I exercised my discretion to grant the prosecution’s application and allowed the prosecution to adduce evidence in the absence of D1. 18.As D1 was absent from the trial, I entered a plea of not guilty for D1. I bore in mind that the abandonment of D1’s right to participate in the trial should have no bearing on the guilt of D1 and that no adverse inference should be drawn against D1. D1 should not be convicted unless the prosecution has discharged the burden of strict proof and proved their case. C. The defence objection to being prosecuted on some of the articles 19.Information of the 17 articles which form the prosecution basis, such as the dates of publication, can be tabulated as follows:
20.On the first day of trial[10], the defence objected to D2 and D3 being prosecuted on 13 of the 17 articles listed above (namely, A2 to A13). 21.The defence argued that section 159D(1) of the Crimes Ordinance imposes restrictions on the prosecution: if the time limit for prosecuting an offence has expired, a charge of conspiracy to commit the offence cannot be laid under section 159A(1). In the present case, in respect of the offence under section 10(1)(c), section 11(1) requires that the prosecution must be brought within six months of the commission of the offence. Therefore, if no prosecution was instituted within 6 months of the publication of the seditious publications, no prosecution could be instituted against a conspiracy to publish a seditious publication. 22.The defence argued that, as the prosecution charged the three defendants on 29 December 2021, under section 11(1), the defendants could only be prosecuted in respect of articles published within six months prior to that date (i.e. articles published after 29 June 2021). The defence also argued that, since Stand News removed articles A2 to A13 from its website[11] following the public notice issued on 27 June 2021[12], more than 6 months had elapsed by 29 December 2021. Thus the time limit had expired, and the prosecution could not lay prosecution in respect of the publication of A2 to A13, and was also barred by section 159D(1) from prosecuting for the offence of conspiracy to publish seditious publications. The court should not and does not have jurisdiction to deal with such a matter, and the evidence concerned is not admissible. 23.The prosecution did not dispute that A4 to A13 were removed more than six months before 29 December 2021 (i.e. before 29 June 2021), but points to the evidence that after 29 June 2021, A1 to A3 and A14 to A17 could still be found on the website of Stand News. 24.In any event, the prosecution alleged that the conspiracy charge faced by the three defendants involved a continuous offence, i.e. the three defendants had agreed with each other and with other persons to publish seditious articles in Stand News continuously. For a continuous offence, the time limit for prosecution does not start to run until after the period of the offence has ended. In this case, the agreement of conspiracy to publish seditious publications ended when it was stopped on 29 December 2021, so the time limit for prosecution was 6 months after 29 December 2021 (i.e. 29 June 2022), and since the prosecution had already charged the three defendants on 30 December 2021, it was not out of time. 25.As regards the restriction in section 159D(1), the prosecution pointed out that the conspiratorial agreement as referred to in the present charge was not the publication of A4 to A13, but the continuing publication of seditious articles in Stand News. A1 to A17, including A4 to A13, were the overt acts of the conspiratorial agreement in this case. Therefore, although A4 to A13 had already been removed more than six months before 29 December 2021, the restriction in section 159D(1) does not prevent the prosecution from using the publication of A1 to A17 to prove the conspiratorial agreement alleged in the offence. (Reasons for dismissal of the defence objection) 26.HKSAR v Lai Chee Ying [2023] HKCFI 3337 was also about conspiracy to commit the offence of publishing seditious publications under section 10 of the Crimes Ordinance. In paragraph 35 of the judgment, the Court of First Instance held that a conspiracy to commit a one-off offence was different from a conspiracy to commit multiple breaches of section 10, and in paragraph 42 of the judgment, it was held that the time limit for the latter offence did not start to run until the last day of the charge:
27.I am of the view that the allegation in this case also involves a conspiracy to commit multiple and successive breaches of section 10, and so I accept the prosecution’s argument that the time limit for prosecution does not start to run until the period of the offence has ended. The prosecution in this case was therefore not brought out of time. 28.As regards section 159D(1)’s restriction on prosecution, the provision is as follows:
29.I am of the view that the objective of section 159D(1) is to prevent the prosecution from making use of a conspiracy charge for an offence for which the time limit for prosecution has expired. Conspiracies subject to the restriction are limited to agreements to commit offences for which the time limit has expired, but not other conspiratorial agreements with different contents, for otherwise it would be inconsistent with the objective. In this case, the evidence showed that A4 to A13 had been removed after 27 June 2021 and were not published again; the prosecution would have been restricted by section 159D(1) from prosecuting on a conspiracy to publish A4 to A13 after the expiration of six months. Section 159D(1) does not, however, restrict prosecution for other conspiratorial agreements with different contents. 30.The content of the conspiratorial agreement alleged in this case was the continuing publication of seditious articles in Stand News, which is distinct from a conspiracy to publish A4 to A13. Even if A4 to A13 had been published beyond the 6-month period prior to 29 December 2021, section 159D(1) does not restrict the institution of prosecution of the conspiratorial agreement alleged in the offence of this case. I also agree that the publications of A1 to A17 were only the overt acts of the conspiratorial agreement in this case which could be used to prove the agreement in question. It is therefore held that the prosecution can adduce evidence in respect of all 17 articles from A1 to A17. D. The defence application for a permanent stay of proceedings 31.On Day 3 of the trial[13], Detective Police Constable 15186, the second prosecution witness (PW2), testified that from 24 June to 13 July 2021, he had downloaded articles A1 to A15 from the website of Stand News upon the instruction of his supervisor. Under cross-examination, PW2 disclosed for the first time that, other than the 30 articles already disclosed by the prosecution, there were hundreds of other articles downloaded as per the instruction of his superior which had not been disclosed. The prosecution team, including the police case investigation team (“Case Team”), stated that they had been unaware of this non-disclosure. Having been apprised of the situation, the prosecution made further disclosure of documents to the defence on the 5th day of trial[14]. Together with the 30 articles disclosed earlier, a total of 587 articles downloaded from the website of Stand News were disclosed by the prosecution to the defence. 32.The above developments in relation to disclosure led to an application by the defence for a permanent stay of proceedings. I dealt with the application as a special issue by way of alternative procedure. 33.The fifth and sixth prosecution witnesses, Senior Inspector Lo Kin-yin (PW5) and Chief Inspector Chan On-ming (PW6), gave evidence and explained that PW2 was attached to sub-unit Y1 which was originally responsible in this case for tasks including intelligence gathering and collecting online evidence. As the officers in charge of sub-unit Y1, PW5 and PW6 had obtained intelligence on 22 June 2021 that Stand News would take down suspected unlawful articles within a short period of time; PW5 and PW6 then started to review a large number of articles on the website of Stand News and selected 553 and 34 articles on 22 June and 13 July respectively, making a total of 587 articles with sensitive contents, which were downloaded and kept by PW2. After several meetings between PW5 and PW6, about 100 articles were selected from the 587 articles. After yet more meetings with PW6’s supervisor (Superintendent Wong C.H.), 30 articles were further selected and handed over to the Case Team for handling. 34.The prosecution also called prosecution witnesses 7 to 9 (PW7 to PW9) to give evidence. 35.Mr Law, PW7, was then the Technology Development Manager of UDomain Company. According to his evidence, Stand News registered its domain name with his company and rented cloud services from 2015 to August 2020. In September 2020, Stand News switched to Google for cloud server services. 36.PW8, Senior Constable 193, was a police officer who had examined the electronic equipment. He testified that the arrest and search operation on 29 December 2021 did not result in the closing down of the Stand News website. The exhibits examined by the police did not include the web server of the Stand News website. After the digital exhibits had been seized from the Stand News office, the Stand News website could still be browsed as usual. 37.Sergeant 3156, PW9, was the officer responsible for issuing notices to D2 and D3 for taking down part of the publications in question. During the arrest operation, he had requested Stand News to take down articles A1, A14 to A17 and had given notices to D2 and D3 who had acknowledged receipt. At about 1:30 pm on the same day, someone who claimed to be a representative of Stand News called him and told him that the articles had been removed. He confirmed that the links to those articles were dead and the articles could not be viewed, but other pages of the website were still active. At 4:00 p.m. on the same day, he found that Stand News had ceased to operate. 38.In the application for a permanent stay of proceedings, D2 and D3 elected not to give evidence, nor did they call any witness or adduce any evidence. The defence submitted that there were serious problems with the prosecution’s handling of the case, making a fair trial not possible or amounting to an abuse of process and an affront to the court’s sense of justice and propriety. The application had the following two aspects. 39.Firstly, the prosecution (including officers of the Case Team and sub-unit Y1) had a duty to disclose information gathered during the investigation. Failure to disclose information or delay in disclosure could result in a stay of proceedings by the court; it could also be regarded as procedural irregularity rendering the conviction unsafe[15]. 40.The defence contended that the prosecuting team had been kept in the dark about the downloading and keeping of the 587 articles by sub-unit Y1 officers, thus was unable to discharge their duty to prosecute fairly and impartially. Before PW5 and PW6 selected the 587 articles, they had already reviewed a large number of other articles. However, the prosecution (i.e. the prosecution team and the Case Team) was not informed. The defence submitted that when PW5 and PW6 had reviewed such a large number of articles, it was obvious that they had already formed the view that seditious publications existed on the website of Stand News. The objective of the review was not to conduct an impartial investigation, but to identify those publications which PW5 and PW6 subjectively considered to have seditious intentions. The fact that a large number of articles other than the 587 articles were not kept, and that the final basis of prosecution involved only 17 articles out of a large bulk, demonstrated that the standard was vague, biased and unfair, and it was a distortion of the facts, and it was grossly unfair. 41.The defence submitted that the defendants could have relied on the large number of articles reviewed by PW5 and PW6 to raise their defence, namely, that Stand News had reported impartially on the topics dealt with in the 17 articles forming the prosecution basis, so there was no seditious intention. However, the prosecution did not keep any articles other than the 587 articles eventually disclosed. It was not known how many other articles were reviewed by PW5 and PW6 and what their contents were. On the day the police arrested D2 and D3, the website of Stand News ceased to operate. The defence submitted that D2 and D3 did not have the opportunity to save the contents of the website of Stand News, and had thus lost the evidence which could have proved that Stand News had adhered to the media’s principle of fairness. Such lost evidence included blog posts criticising the pan-democrats and putting forward other views, or live reports on the Hong Kong Government’s press conferences, and the Hong Kong Government’s or the Central Government’s officials’ formal responses to current affairs, etc. The defence contended that the prosecution failed to have a full grasp of the facts of the case and could not assist the court in finding the truth and administering justice. 42.Secondly, the defence complained that the prosecution’s opening submission was biased and unfair. The defence argued that the prosecution’s duty was to present the case fairly and impartially, instead of going out of its way to achieve a conviction, and therefore the opening submission must be fair and measured, and should not be an intemperate emotional attack on the defendants[16]; however, the opening submission in this case was biased and disproportionate, showing that the prosecution had failed to conduct a fair and impartial prosecution. The defence cited the following examples[17]:
43.The defence also submitted that, by quoting the 5.28 decision[19] in paragraph 32 of the opening submission, the prosecution had insinuated without any evidential basis that articles A1 to A17 had promoted various kinds of improper ideas and incited improper acts, such as the independence of Hong Kong, advocacy of anti-China and anti-CPC propositions, deliberate disruption of social order, violent opposition against law enforcement by the police, and the paralysing of the government’s governance and the operation of the Legislative Council, etc. (Reasons for dismissal of the defence application) 44.There is no dispute between the prosecution and the defence as to the legal principles applicable to an application for a permanent stay of proceedings (also known as an application for a stay of criminal proceedings). In paragraph 10(iv)(3) of the judgment in 香港特別行政區 訴 韦德恩[2024] HKCFI 799, the Court of First Instance summarised the relevant legal principles established by the Court of Final Appeal[20] as follows:
45.After careful consideration, I accepted the prosecution’s explanation that the delay in disclosing the 557 articles was due to an error of judgment on the part of the police when submitting the articles to the Department of Justice. There was insufficient evidence in this case to show that the police officers of sub-unit Y1 had deliberately failed to disclose or delayed the disclosure of all the relevant materials. After the disclosure had been made by the prosecution, the defence was given sufficient time to examine the relevant articles, and the court found that the delay in disclosure had not caused severe prejudice against the defence so that a fair trial would become impossible. 46.As regards the articles examined by PW5 and PW6, other than the 587 articles retained by the police, it is worth noting that these articles not retained were not exhibits in the form of real objects taken from Stand News or from any of the defendants or witnesses, but were downloaded by the police officers from the Stand News website onto the paper belonging to the investigation team. In other words, these were not exhibits taken by the police officers from any witness or the defendants. The officers could not have expected that Stand News would not retain or would lose these documents after they had been discarded. The evidence shows that the police operation on 29 December 2021 did not affect the operation of the Stand News website. The subsequent closing down of the website was not by the police. The fact the defendants were subsequently unable to retrieve other articles published by Stand News for retention was not, in my view, something that could have reasonably been anticipated by the police and other officers of the prosecution. The defence argued that evidence such as blog posts criticising the pan-democrats was lost; however, the defendants should have been able to obtain the necessary information from the operator of the website’s cloud servers (i.e. Google), and Stand News had already moved its servers storing all its articles out of Hong Kong back in September 2020, and had opened a branch in the UK in February 2021. Moreover, I considered that evidence could be adduced by other alternatives, such as calling the authors concerned to give evidence. I did not accept that the defence had lost the ability to use other articles as evidence. It could be seen from the subsequent development of this case that although the defence contended that the articles published by Stand News and retained by the third party were incomplete, in fact the defence could still obtain articles other than the 587 articles disclosed by the prosecution and published by Stand News as evidence through different channels[21]. Therefore, I was of the view that although the police did not retain the other articles, no unfairness had been caused in the trial. 47.As regards the opening submission of the prosecution, I was of the view that the prosecution was only setting out its case on the basis of the evidence to be produced to the court and the materials to be adduced. The prosecution’s approach was permitted by the relevant authorities (see paragraphs 100 to 101 of HKSAR v Chen Keen [2021] HKCFI 3546) and there had been no impropriety. Moreover, even if the opening had been in any way unfair to the defence, I, as a professional judge, would ignore this, and therefore, the fairness of the trial would not be affected. 48.On the whole, I was of the view that the defence had not proved that the prosecution’s failed and/or delayed disclosure of the materials had resulted in the defence being denied a fair trial. The defence was neither able to establish that allowing the prosecution to continue would result in an abuse of the court proceedings by the prosecution, nor establish any other valid ground in support of a permanent stay of the proceedings. The defence application was dismissed. The prosecution was to proceed. E1. Overview of prosecution witnesses 49.As D1 was absent from the hearing, the prosecution was put to strict proof and 33 witnesses in total were called to give evidence. 50.Following the giving of evidence by PW2 on the downloading of the contents of the Stand News website (including articles A1 to A15)[22], Police Constable 15186, the fourth prosecution witness (PW4), also testified that he had downloaded and saved other contents of the Stand News website (including articles A16 and A17) on 15 November and 7 December 2021. Articles A1 to A17 were produced as exhibits by PW2 and PW4 respectively[23]. 51.In addition, Police Constable 14915 (PW1), Detective Police Constable 6006 (PW3) and Detective Police Constable 8971 (PW10) similarly gave evidence in relation to the downloading of various contents of the Stand News website, such as the launch statement of Stand News[24] and the clips relating to 17 articles, etc. 52.The evidence of the above witnesses showed that emoticon responses and comments left by netizens regarding the contents of the website were available for public access. Some of them played up the hatred towards the Communist Party of China (CPC) or the Government of the Hong Kong Special Administrative Region (the SAR Government), and advocated that the public should fight till the end. There were also netizens with different stances chastising one another. 53.PW5 to PW9 gave evidence in the alternative procedure for the application for a permanent stay of proceedings as set out in paragraphs 33 to 37 above. 54.Other prosecution witnesses testified as follows. 55.Mr Cheung (PW11) is an Executive Officer of the Office for Newspaper and Article Administration. According to his evidence, the proprietor, printer, publisher and editor of Stand News were Yu Ka-fai at the time of registration in September 2017. They were subsequently changed to D2 in August 2018, and there was an application for changing them to D3 in November last year. 56.Mr Fan (PW12) is the former landlord of the office premises of Stand News. At the material time, he had rented the premises to D1. 57.Mr Wong (PW13) is an Assessor of the Inland Revenue Department. According to D1’s tax records, between 2015 and 2018, D2 was reported to be D1’s Chief Editor and D3 was reported to be a reporter. 58.PW14 is Acting Senior Immigration Officer Cheung Chi- yan. According to the movement record up to September 2022, since the departure of Tsoi, D1’s current sole director, from the territory in November 2019 via the Hong Kong Airport, there had been no record of his entry into Hong Kong. 59.Mr Tang (PW15) is a staff member of Vistra, an international business group. Vistra provides services for setting up overseas companies and had retained relevant records of D1’s overseas parent companies, Indepth Global and Web Network. 60.Senior Police Constable 54809 (PW16) and Photographer Mr Chau (PW17) produced to the court the photographs of the scene taken by the police on 29 December 2021 at the office of Stand News. 61.Sergeant 7164 (PW18) was responsible for handling the exhibits relating to Stand News’ Paypal account. 62.Detective Police Constable 14593 (PW19), Detective Police Constable 9161 (PW20), Detective Police Constable 14343 (PW21), Detective Police Constable 16505 (PW22), Detective Police Constable 10457 (PW23) and Detective Police Constable 7910 (PW26) had searched the offices of Stand News on 29 December 2021. The exhibits seized included computers, hard disks, memory cards, etc., staff name cards, cheques issued by the company, bank documents relating to House News[25], company documents of Indepth Global and Web Network, a letter from D2 dated 1 December 2021 about his resignation as the director of the company, News Stand[26] , which was a paper publication of Stand News, etc. 63.Detective Senior Inspector Yau Chor-yee (PW24) confirmed in her evidence that, at the material time, several interviewees and authors of the articles concerned in the case were arrested or were on the wanted list for being involved in various criminal cases relating to national security, including Ho Kwai-lam, Chow Ka-shing, Leung Fong-wai Fergus, Law Kwun-chung, Hui Chi-fung, Cheung Kwan-yang, etc. 64.Detective Sergeant 4420 (PW25) was responsible for analysing the bank records and Paypal records of Stand News. 65.Sergeant 8710 (PW27) was responsible for searching D2’s residence. At the time of D2’s arrest, an iPhone belonging to D2, D2’s Stand News staff card and D1’s company credit card were found in his residence. Upon checking his phone, it was found that D2 had opened two WhatsApp chat groups named “Stand” on 15 December 2021, one having D3 and another Stand News reporter as group members, and the other one having D3 only. 66.Detective Police Constable 13483 (PW28) was responsible for searching D3’s residence. 67.Senior Police Constable 33805 (PW29) was responsible for developing photographs of D2’s residence, D2’s mobile phone and D3’s residence. 68.Detective Police Constable 16503 (PW30) was responsible for reviewing and analysing the contents of D2’s phone and producing transcripts of the relevant WhatsApp conversations. 69.Detective Sergeant 58307 (PW31), on 16 August 2021, checked to see if the articles concerned in the case had been removed from the Stand News website. 70.Detective Sergeant 9551 (PW32) was the arresting officer of D2. After being arrested and cautioned, D2 said, “I am the Chief Editor of Stand News. It has nothing to do with others.” D2 later had two video-recorded interviews which lasted 169 minutes in total. The admissibility of all the admissions was not disputed. 71.Detective Police Constable 15981 (PW33) gave evidence on the online hit rates of articles A1 to A17. E2. Context of the relevant time period 72.The prosecution submitted that the court may, by taking judicial notice, accept the following matters as the context of the relevant time period which would assist in its understanding of the intentions of the articles:
73.In its closing submission, the prosecution categorised the 17 articles into four groups. 74.The first group consisted of A1, A2, A3 and A13, totalling 4 articles. The first 3 articles were profile interviews (i.e. A1, A2 and A3) with Ho Kwai-lam, Chow Ka-shing and Leung Fong-wai Fergus as the interviewees. All three of them were candidates in the 35+ Primary Election. The prosecution alleged that in their respective interviews each of the three persons promoted anti-government and anti-Central Authorities political ideologies, i.e. seizing control of the Legislative Council to threaten the government in order to achieve their political objectives. A1 advocated fighting against the CPC and the SAR Government in different areas; A2 promoted separatist Hong Kong nationalism; and A3 advocated that China was Hong Kong’s enemy, and criticised the CPC and the SAR Government as being totalitarian. As for A13, it was a blog post written by Law Kwun-chung, which criticised the absurdity of prosecuting the 35+ Primary Election case, alleging abuse of power by the CPC, and advocating the unity of Hong Kong people in fighting against the government. The prosecution argued that this first group of articles was clearly capable of bringing hatred against the Central Authorities or the SAR Government within the meaning of section 9(1), and there were therefore seditious intentions in these articles. 75.The second group consisted of 6 blog posts, A4, A5, A11, A12, A14 and A15, and they were about the enforcement of the Hong Kong National Security Law and the related judicial processes. A4 and A5 were authored by Chan Pui-man and Law Kwun-chung respectively, and the remaining four articles were all written by Allan Au Ka-lun. The prosecution alleged that article A4 used individual law enforcement and prosecution actions to discredit the police and to play up the regime’s suppression of dissidents. Article A5 alleged that the SAR Government had subjected dissidents to unjustified arrests and long-term imprisonment, thus suppressing Hong Kong people’s thoughts and speech. The prosecution also alleged that the article encouraged the readers to use different tactics to undermine the Central Government’s governance, and to preserve the strength and broaden the battlefront, with the aim of overthrowing the CPC and subverting state power. The remaining 4 articles, A11, A12, A14 and A15, alleged that the Hong Kong National Security Law and other laws had been abused and had become political tools to oppress the public. The prosecution alleged that there were seditious intentions in the second group of articles because they smeared and attacked the relevant law enforcement actions, prosecutions and judicial proceedings, which could bring into public hatred and contempt against the SAR Government, the Police Force and the Hong Kong National Security Law. 76.The third group consisted of A6, A7, A8, A9 and A10, totalling 5 articles. Three of them, A6, A8 and A9, were profile interviews, while A7 and A10 were two blog posts. The respective interviewees or authors were Law Kwun-chung (A6 and A7), Hui Chi-fung (A8), Leung Chung-hang Sixtus (A9) and Cheung Kun-yang (A10). The prosecution alleged that they were persons opposing China and disruptive of Hong Kong, who fled overseas after the promulgation of the Hong Kong National Security Law, and advocated sanctions against the Central Authorities and the SAR Government. Article A6 accused the regime of using unlawful and underhanded ways to retaliate against dissidents. Article A7 used rumours to spread hatred and arouse anti-government sentiments. Article A8 declared war on the SAR Government. Article A9 vilified the law enforcement agencies and the entire judicial system of Hong Kong. It also promoted the idea of Hong Kong independence and depicted the CPC as standing in opposition to the Hong Kong people. Article A10 accused the Central Government of oppressing and brutalising Hong Kong’s autonomy and people with its authority and lies. The prosecution argued that the third group of articles was clearly capable of bringing into hatred against the Central Authorities or the Hong Kong Government within the meaning of section 9(1), hence the articles had seditious intentions. 77.The fourth group consisted of 2 articles, A16 and A17, which were published after D3 took over the duties of the chief editor. A16 was a profile interview with two anonymous interviewees who claimed to be alumni of the Chinese University of Hong Kong (CUHK). The prosecution alleged that by having the interviewees recall the riot that had happened on 12 November 2019 on the campus of CUHK, the article glorified the acts of the rioters and discredited the legitimate law enforcement of the police, attempting to rekindle the violent protests that had already cooled down, so as to bring into public hatred against the SAR Government and the police. A17 was a news report about Chow Hang-tung’s receipt of the Distinguished Person for Advancing Democracy in China Award, as well as her acceptance speech. In her acceptance speech, she implied that policy measures such as the law enforcement arising from the 2019 bill amendments and the enactment of the Hong Kong National Security Law were acts by the CPC in the totalitarian suppression of a democratic social system and the law, and to undermine the freedom and openness of society, which could bring into hatred against the Central Authorities or the Hong Kong Government. Therefore, the prosecution alleged that the fourth set of articles had seditious intentions. E4. Mens rea 78.The prosecution submitted that, as a limited company, D1’s mens rea was transferred from the company’s directing mind and will. As shown in its Launch Statement[28], D2, Yu Ka-fai and Tsoi were the founders of Stand News. The three of them held D1 through an overseas parent company to operate Stand News. Yu Ka-fai later faded out from it, and only D2 and Tsoi controlled D1 through the overseas parent company during the material time. 79.As can be seen from the defence case below, D2 admitted in his testimony that he, as the Chief Editor, had approved all the publications on Stand News and confirmed that he had approved the publication of articles A1 to A15 during his tenure of office. And although D2 claimed that he did not approve articles A16 and A17 because he had already left office, the evidence shows that after he had left office, he continued to give instructions to D3 through WhatsApp. The prosecution argued that D2 had merely stepped behind the scenes and was in fact still remotely controlling the operation of Stand News with the assistance of D3. In other words, the prosecution alleged that A1 to A17 were all published under the supervision of D2. Therefore, D2’s intention to publish equated to D1’s intention to publish. 80.Evidence shows that D2 studied Politics and Public Administration and then had worked in journalism for a long time, and in 2014 became the Chief Editor of Stand News, and except for rest time, he basically spent all of his time reviewing articles and news report drafts or visiting various websites or social media platforms to obtain information. D2 obviously had deep political profoundity, having done abundant research and opiniated on journalism, social and political issues. 81.The prosecution alleged that, against the context of the relevant time period, there were strong seditious intentions in the contents, wording, opinions and ideas advocated in the 17 articles. Given D2’s academic qualifications, personal background, working experience and social exposure, under the then social environment, he must have been aware of the seditious intentions of the 17 articles, which could excite the public’s disaffection, discontent and even hatred against the government, thus posing a potential national security risk. The prosecution therefore considered that D2 possessed the mens rea required under section 10(1)(c) of the Crimes Ordinance, i.e. knowledge of the seditious intention of the contents of the articles[29]. 82.In addition, the prosecution also argued that, from D2’s knowledge of the seditious intention of the articles, it could be inferred that D2 foresaw the possible consequences that the articles could bring about, and it can be further inferred that D2 had specific seditious intent. The prosecution submitted that the relevant inferences could be strengthened by the following:
83.The prosecution submitted that D2’s specific seditious intent then turned to become the specific seditious intent of D1. 84.If it was not D2 who had approved the publication of A16 and A17, the prosecution argued that D3, who had taken over the role of Chief Editor at that time, must have been the directing mind and will behind the approval. The prosecution pointed out that D3, who had been working for Stand News for a long time, was the Deputy Chief Editor for most of the time during the period in question, even taking up the post of Chief Editor during the last two months or so. According to the prosecution case, as there were clear seditious intentions in A16 and A17, it could be inferred that D3 was aware of the seditious intention in the two articles, and it can be further inferred that D3 could foresee the consequences of publishing the articles and had specific seditious intent. Therefore, in relation to A16 and A17, D3 possessed the requisite mens rea under section 10(1)(c) which then turned to become the mens rea of D1. 85.The prosecution also argued that D1’s mens rea can be inferred from various matters, including the following:
86.The prosecution argued that Stand News promoted or advocated anti-government political ideologies and, contrary to the defence claim, did not comply with the principle of media impartiality at all. The prosecution cited as an example that, while criticising the Hong Kong National Security Law including the arrangements of appointing designated judges, Stand News did not report the decision of the court that the arrangements were in line with the European human rights and international standards[35]. 87.The prosecution submitted that as the above shows, Stand News under D1’s operation was an advocacy media organisation with a definite political stance, i.e. it was a political platform; that it clearly supported the pro-democracy camp in the 2019 anti-ELAB movement, and disseminated and advocated concepts against the Central Authorities and the SAR Government, including: that “one country, two systems” existed in name only; the CPC controlled the SAR Government with its authoritarian power to exert pressure on the public, and restricted various freedoms of the public; that the protesters could push forward the democratisation of Hong Kong through sanctions imposed on China by Western countries, and so on. The prosecution further submitted that Stand News also promoted the pro-democratic camp’s entry into and dominance of the Legislative Council (LegCo) in order to further fight for their demands and to promote anti-government public sentiments and oppose the implementation of the Hong Kong National Security Law. 88.The prosecution further alleged that the directing mind and will of D1 must have been aware of the political stance of Stand News and the contents of the articles published. The prosecution suggested that, against the context of the relevant time period, there were strong seditious intentions in the contents, wording, opinions and advocacies, etc. of the 17 articles. Therefore, D1’s directing mind and will must also have been aware of the seditious intention in the contents of the 17 articles, and hence possessed the requisite mens rea under section 10(1)(c) of the Crimes Ordinance[36]. The prosecution therefore submitted that D1, through its directing mind and will, also possessed the requisite mens rea. 89.In addition, evidence shows that since the anti-ELAB movement in 2019, Stand News had 1.6 million followers, 1.3 million likes, and D1’s revenue had skyrocketed. It is thus evident that Stand News had strong readers’ support. The prosecution alleged that Stand News had the ability to set topics for public discussion and could even lead it to skewed conclusions. The prosecution suggested that the court can infer that, against the background of the social unrest at the material time, the principal of D1 must have contemplated the natural seditious consequences that could be triggered by the articles. It can be further inferred that the principal of D1 made use of the influence of Stand News to promote anti-Government ideology, in other words, had specific seditious intent. The prosecution gave the following example: Stand News continuously suggested in its commentaries that the HKNSL was detrimental to democracy and freedom in Hong Kong; such commentaries included the anti-Government viewpoints and opinions in Allan Au Ka-lun’s articles. It was obvious that the intention was to implant these ideas in people’s hearts and minds. Therefore, even if section 10(1)(c) of the Crimes Ordinance requires the person who publishes seditious publications to have contemplated the consequences of sedition, or even specific seditious intent, the prosecution’s stance is that D1, through its directing mind and will, had the requisite mens rea. 90.The prosecution suggested that the following actions were taken by the directing mind and will of Stand News to avoid law enforcement actions because he was conscious of the unlawful seditious intention of the publication. These actions therefore support the inference that the directing mind and will had the requisite mens rea for the offence of publishing seditious publications:
E5. Conspiracy agreement and intention to put it into effect 91.D2 admitted in his evidence that Tsoi had provided the funds to set up Stand News. The prosecution submitted that Tsoi, as an investor, had the final say in financial matters and made the final decision on the retention or dismissal of the Chief Editor. He in fact controlled the direction of Stand News’ operation, including signing D2’s employment contract, approving D2’s pay rise, and approving the deployment of funds to the UK branch, etc. The prosecution therefore came to the view that Tsoi was the ultimate directing mind and will controlling the operation of D1 and Stand News. In addition, the prosecution suggested that Stand News ceasing its operation to the public a few hours after the arrest of D2 and D3 must have been a decision made by Tsoi, as the ultimate directing mind and will, who was well aware of the existence of evidence of crime on the website of Stand News. 92.Likewise, relying on D2’s evidence, the prosecution alleged that D2’s stance on important core values or cardinal issues of absolute right and wrong was similar to those of Tsoi and D3. D2 also agrees that Stand News was a platform which Tsoi had provided to him (“to create a stage”) for him to operate. The prosecution suggested that, as Tsoi appointed D2 to be the Chief Editor and D2 had been approving seditious publications, Tsoi must have been aware of and agreed all along with such matters. The prosecution infers from the above that Tsoi, as the ultimate directing mind and will of Stand News, had been conspiring with D2 to make use of Stand News to continuously publish seditious publications. From the publication of articles A1 to A17 as approved, it was clear that the conspirators had the intention to put the conspiracy agreement into effect. 93.The prosecution alleged that D2, who continuously gave approval of publishing seditious publications, was a core conspirator in the present case. In addition to Tsoi, other persons including the interviewees, authors and so on, also took part in the conspiracy. 94.As for D3, he had worked at Stand News for a long time, being the deputy Chief Editor for the better part of the time when the offences occurred, even taking up the post of Chief Editor in the last two months or so. The prosecution alleged that D3 must have been fully aware of the political stance of Stand News and the contents of the articles published at the material time. Under the circumstances, D3’s assistance in running Stand News can show that he also took part in the conspiracy in this case, joining in at the latest when he took up the post of Chief Editor, and intended to put the conspiracy agreement into effect by participating in the publication of A16 and A17. 95.The defence did not dispute that D1 operated Stand News and published articles A1 to A17. Most of the exhibits and the evidence of prosecution witnesses are also agreed by the defence[37]. 96.However, the defence did not accept the inference drawn by the prosecution and raised a number of constitutional and legal arguments on the offence of publishing seditious publications, thereby disputing (1) whether there was any seditious intention in the articles (the defence argued that in addition to proving the articles had such intention, the prosecution has to prove that the articles posed a real risk to national security); (2) whether the defendants possessed the mens rea (the defence argued that the prosecution has to prove specific seditious intent); and (3) whether the principle of operational proportionality applies. On the first day of trial, I directed that the relevant constitutional and legal issues be reserved and be dealt with after the conclusion of the evidence. Lastly, the defence also disputed whether the defendants had entered into an agreement with others to publish seditious articles and whether they intended to put it into effect. 97.After the conclusion of the prosecution case, the defence (including D1 who was absent) did not make any midway submission, and I ruled that there was a prima facie case and the three defendants had a case to answer. D1 was absent from the trial and did not put forward any evidence. D2 elected to give evidence but did not call any witness. D3 elected not to give evidence and did not call any witness. (D2 only admitted approving the publication of A1 to A15) 98.D2 testified that he joined the online media “House News” in 2012 as an editor and had worked there until July 2014 when it ceased operation. In December 2014, D2, Tsoi and Yu set up D1 to run Stand News on a non-profit-making basis, with D2 assuming the position of the Chief Editor of Stand News. The defence pointed out that D1 was held by an overseas company, Web Network, which was held by another overseas company, Indepth Global. D2, Tsoi and Yu each held one-third of the share in Indepth Global, but all three of them, at the same time through a trust arrangement, had waived their financial interest in the share and their right to dispose of it, so that D1’s share was held on trust on a long term basis. 99.In terms of the contents of the publication, D2, as the Chief Editor, was the sole and final decision-maker of Stand News. D2 admitted that he had approved the publication of A1 to A15 when he held the office of the Chief Editor. (The articles had no seditious intention) 100.Regarding the prosecution’s first group of articles (i.e. A1, A2, A3 and A13), D2 did not consider that there was any seditious intention in them. The 35+ Primary Election had an impact on the original 2020 LegCo Election, which was a matter of public interest and was newsworthy, necessitating full documentation and truthful reporting. The purpose of the three profile interviews in A1 to A3 was not to support or praise the interviewees, but to explain to the public their political ideologies through the interviews. D2 pointed out that the author of A1 had conducted the interview in a sceptical manner. As for A2, according to D2’s understanding, the Hong Kong nationalism mentioned by the interviewee did not necessarily mean secessionist Hong Kong independence. The interviewee in A3 had already been disqualified from running in the election before the interview and had no chance to run in the election at all. The government subsequently postponed the LegCo Election, so there was no question of supporting this interviewee’s election campaign. Regarding A13, D2 considered that the author’s comments did have factual basis in that they were based on the author’s knowledge of the law and of the details of the primary election case. 101.Regarding the prosecution’s second group of articles (i.e. A4, A5, A11, A12, A14 and A15), where the bloggers concerned criticised law enforcement operations and judicial procedures of the HKNSL and described the offence of sedition as an evil law, etc., D2 considered that there was a factual basis for the criticisms and they reflected the public concerns and views at the time. D2 stressed that the authors genuinely believed that the policy and the law contained errors, and that they were not malicious and did not have seditious intent. 102.Regarding the prosecution’s third group of articles (i.e. A6, A7, A8, A9 and A10), D2 considered that what was advocated overseas by the interviewees and bloggers concerned involved the interest of Hong Kong, affecting the public and thus needed to be made known to the members of the public, and that the criticisms towards the government, law enforcement agencies and even the Judiciary were genuine and had no seditious intent. The defence produced as evidence other media reports, showing that other media had also published views and propositions of the persons concerned, such as the profile interviews of Law Kwun-chung by the Hong Kong Economic Journal and Cable News[38]. 103.Regarding the prosecution’s fourth group of articles (i.e. A16 and A17), D2 stated that the articles were not approved by him as he had already left the post of Chief Editor by that time. In any event, D2 had read the articles afterwards and considered that A16 gave a neutral and true account of the memories and feelings of the interviewed CUHK alumni, that the content was consistent with the facts, and he did not consider it seditious. As for article A17, D2 considered that it was not an article with seditious intention but a typical news report, and the same event was reported by other media. 104.The defence submitted that criticisms of mistakes made by the government, law enforcement agencies and even the Judiciary are permitted under the freedom of speech and have no seditious intent. Stand News published A1 to A17 for the purpose of playing the role of the fourth power as a member of the media to monitor those in power through documentation and reporting, so that the government and those in power can be reminded and alerted, and then rectify problems. The defence relies on section 9(2) of the Crimes Ordinance which provides the defence that pointing out errors in the government’s measures or the constitution or in legislation or in the administration of justice and so on, with a view only to the remedying of such errors, is not seditious. (The articles did not constitute real risks to national security) 105.D2 was of the view that there has long been public discontent with the government in society, and expressing discontent was just an expression of public opinion, and in no way did it mean that there exists real risks to national security sufficient to undermine the authority of the government and to overthrow the constitutional system of “one country, two systems”, etc. He was also of the view that the situation was not as serious as unrest in foreign countries, despite the development of the 2019 anti-ELAB movement which surprised him with its extremely heated public sentiments. D2 believed that the country is very strong and the occurrence of real risks to national security is unlikely. D2 testified that, having considered the issue of risk to national security, he did not think that any of the articles in A1 to A15 constituted any real risk to national security and therefore approved their publication. Likewise, the defence did not consider that A16 or A17 constitutes any real risk to national security. 106.The defence contended that it is clear from D2’s evidence below that D2 did consider the issue of risk to national security in approving the publication of the articles, negating any specific seditious intention:
(Media’s responsibility, not a political platform, no seditious intention) 107.As the Chief Editor, D2 testified that Stand News had tried its best to accommodate a wide range of voices, and would not change its content due to social pressure, emphasising that publishing an article was not equivalent to endorsing the author’s stance or the content of the article. D2 stated that there were three principles of content publication in Stand News: (1) freedom of speech was the first and foremost; (2) playing the role of the fourth power as a member of the media in monitoring, checking and balancing the powers; and (3) striving to be the voice for the minority, the powerless and the outcasts. D2 denied that Stand News was an advocacy media organisation or a political platform. 108.As for the blog posts, as long as they (1) did not pose an immediate risk of violence, (2) were not prejudicial to public health, and (3) contained no unfounded allegations or defamatory statements against individuals, Stand News endeavoured to publish as many blog entries as possible in order to demonstrate a high degree of freedom of speech, and to be inclusive of opposing viewpoints. Therefore, despite the fact that D2 or Stand News may not necessarily agree with the content, it would still be made available to the readers. As for the profile interviews, even if the interviewees had strong political beliefs, Stand News would still report them faithfully in order to fulfil the media’s responsibility of reporting on public issues. 109.The defence adduced reports and interviews from different media to show that the media in Hong Kong have always been able to report on different political beliefs, demonstrating the freedom of speech in Hong Kong under “one country, two systems”, including the reports of Ming Pao and HK01 on Ni Kuang talking about himself as an anti-communist writer[39], HK01’s report on Liu Xiaobo’s Charter 08 with the full text published[40] and the reports of am730 and Hong Kong Economic Journal on Benny Tai Yiu-ting calling for the occupation of Central[41]. 110.D2 stressed that the approval of the publication of A1 to A15 carried no seditious intent, and was merely the discharge of the media’s responsibility of reporting faithfully on people and issues relating to public interest and that even if the reports contained criticisms of the Central Authorities and/or the SAR Government, the members of the public did have the right to know. (Publications other than the 17 articles) 111.D2 testified that Stand News published approximately 40 to 50 articles a day. The defence estimated that at least 20,000 articles were published by Stand News during the period specified in the charge, and that the 17 articles relied upon by the prosecution as the basis of the charge constitute only a very small part. As for other articles downloaded by the prosecution, and the news reports that were produced separately for the purpose of cross-examination[42], the defence submitted that they have all been screened and selected to favour the prosecution case. 112.The defence submitted that to determine whether the defendants had the mens rea or not, the court has to consider the contents published by Stand News in their entirety, and should not leave out other articles or media materials that Stand News published while discharging its duty of impartial reporting as a member of the media. For example, Stand News carried live broadcasts of government press conferences, covered court cases in detail and with accuracy, cited reports by other members of the media on the news of the pro-establishment camp and on news from official sources, etc. The defence submitted a number of Stand News articles covering the pro-establishment camp and pro-China figures, including those reporting on the criticism made by the Liaison Office of the Central People’s Government in the Hong Kong Special Administrative Region, the pro-establishment camp and others against Paul Harris, then Chairman of the Bar Association, for advocating the amendment of the HKNSL and his criticism on the lack of fair trials in the Mainland[43]. 113.The defence cited different authorities and professional media guidelines to submit that:
(Objection to documents submitted by the prosecution for use in cross-examination) 114.For the purpose of cross-examining D2, the prosecution submitted a Master Chronology of Events (MFI-4) concerning the background relating to the 17 articles and 4 volumes of relevant news reports[50] (including those published by Stand News). The defence objected. Having heard from both the prosecution and the defence, I allowed the prosecution to cross-examine D2 in respect of MFI-4 and the relevant news reports for reasons set out below. 115.There are two basic principles in criminal trials:
116.In the present case, whether the 17 articles in question had the seditious intention as alleged and whether each of the defendants had the requisite mens rea are issues in the trial, and they can even be said to be the most important issues in this trial. In other words, when D2 gave evidence in court, the prosecution could as a matter of course cross-examine D2 on these issues. 117.With regard to what sedition is and whether each of the articles and each defendant had seditious intention, it is my view that the context of the relevant time period of the publication of the articles in question is not only an important but indispensable factor to be taken into account. Therefore, it is open to both the prosecution and the defence to adduce evidence in relation to the context of the relevant time period. 118.The prosecution submitted that MFI-4, which listed out 278 items of events, was handed up for the purpose of facilitating D2, the defence and the court in understanding the prosecution’s cross-examination, and was not by itself evidence, and that only the testimony given by D2 in court was evidence. In my view, even in the absence of MFI-4, the prosecution was still entitled to ask D2 the same questions and D2 was still required to answer them. The function of MFI-4 was merely to facilitate the conduct of the trial. I therefore cannot see any unfairness being caused to D2. 119.Moreover, I consider it fair to D2 and essential that the prosecution questions him about the events concerned and about his perception of such events at the material time. The reason being that when the prosecution is asking this court to conclude that certain events have actually happened on the basis of judgments in other cases and by “judicial notice”, the prosecution should give D2 the opportunity to give his account. 120.The defence argued that what the prosecution was doing was putting forward rebuttal evidence without fulfilling the strict requirements for producing such evidence, and above all the prosecution must have known before concluding its case that it needed to adduce evidence in this regard. 121.I do not agree that the prosecution was putting forward rebuttal evidence. In my view, the prosecution was entitled to cross-examine D2 on whether he admitted the occurrence of facts which the prosecution believed could be established by the evidence they adduce by judgments of other courts and by the court taking judicial notice. The prosecution could also by cross-examining D2 establish D2’s knowledge of the events in question at relevant times, thereby asking the court to consider whether D2 had the requisite mens rea. This is a point on which the prosecution could cross-examine only if D2 testified in court. 122.The defence also submitted that the events on which the prosecution intended to cross-examine took place over the span of more than four years, so it was possible D2 already had no recollection of them, and that it would be unfair to allow the prosecution to use the documents prepared by them to cross-examine D2 because the court may as a result think that D2 is a dishonest witness. In my opinion, if D2 really had no recollection, he might well say so directly. As to whether his testimony is credible, of course, it is a matter that this court will have to carefully consider in giving judgment. On this issue, this court will certainly consider whether D2’s failure in remembering the events in question was due to the passage of time, or whether he was not giving honest evidence. This is a matter that a jury in a normal trial will consider as a matter of course. Therefore, it cannot possibly be unfair to allow the prosecution to cross-examine D2 in such a way. 123.Furthermore, D2 had already given evidence on the events that took place back in 2019. For example, he talked about the share arrangements and so on of Indepth Global Limited, the parent company of Stand News, at the time the latter was established. These events took place on 16 December 2014 or earlier, showing that D2 could still remember the events in question despite the fact that they happened more than 4 years ago. 124.Having considered the submissions of both the prosecution and the defence, I find that the prosecution is entitled to cross-examine D2 on MFI-4. I have also allowed reasonable time for the defence to go through MFI-4 in order to formulate their response. (D2’s evidence under cross-examination) 125.D2’s evidence under cross-examination includes:
126.In conclusion, the defence contended that D2 was carrying out normal media work in line with the Launch Statement[51] when approving and publishing A1 to A15 and did not have any seditious intention, and Stand News was also not a political platform. 127.Similarly, the defence reiterated that A16 and A17 were not articles with seditious intention and submitted that D3, in reviewing and approving A16 and A17 as the acting Chief Editor, did not have any seditious intention. 128.Since D2 and D3 had no seditious intention, D1 also had no seditious intention. 129.D2 testified that Stand News was editorially independent with all the editorial powers delegated to the Chief Editor, and that the directors would not interfere. Concerning the publication of A1 to A15, D2 had insisted all along, from the time of his arrest through to his testimony in the witness box, that it was his decision alone. The defence argued that the prosecution did not have any evidence of conspiracy. 130.According to D2’s evidence, and D3’s medical report(s) and sick leave certificate(s) obtained during the police raid and arrest, D3 was on sick leave for health reasons from around March 2020, for almost the whole of April and May. Since then, he had been recovering at home and was unable to go to work for a long period of time. The defence argued that the prosecution had not presented any evidence to prove that D3 had been responsible for reviewing and approving any of the articles A1-A15. The prosecution argued that D3 had worked for Stand News for a long time and must have been aware of the articles published by Stand News. However, the defence argued that even if there was knowledge of the articles published and their contents, it did not mean that there was seditious or conspiratorial intention. 131.As to the fact that D2 continued to communicate with D3 and other Stand News staff from time to time after his resignation, the defence argued that it did not mean that D2 was still in control of the editorial work of Stand News in the capacity of Chief Editor, and that D2 had only made occasional suggestions, such as correcting wrongly written words in the published articles, out of care for Stand News. The defence also argued that the prosecution did not have any evidence to prove that D2 was involved in the review and approval of A16 and A17, and that in relation to A16 and A17, as in the case of A1 to A15, the prosecution did not have any evidence of conspiracy. 132.The defence submitted that, during the trial, the prosecution alleged that D2 was the principal of D1 and since the prosecution did not allege that D1 was manipulated by other directors, in such circumstances, D1 and D2 belonged to the same mind, and that legally, there could be no conspiracy with the same person/mind[52]. 133.The prosecution alleged for the first time in its closing submission that Tsoi was one of the directing minds and wills of D1 and the ultimate boss. The defence argued that different people could be responsible for different aspects of a company’s activities, and that in considering who was the directing mind and will of a company, the court must take into account not only the nominal capacity but also the actual operation of the company and the exercise of power. The defence submitted that the prosecution had no evidence whatsoever to show that Tsoi was involved in the day-to-day operation of Stand News during the material time, particularly with regard to the editing, reviewing and approving of A1 to A17, and that the allegation that Tsoi conspired with D2 or D3 could not be substantiated. G. Verdict 134.I bear in mind that the burden of proof is on the prosecution and that the standard of proof is beyond reasonable doubt. In other words, in respect of each defendant, the prosecution must prove each element of the offence beyond reasonable doubt. 135.D2 elected to give evidence, D1 gave up participating in the trial, and D3 elected not to give evidence. I bear in mind that the court must not draw any adverse inference against any of the defendants based on their selection of giving or not giving evidence, as they are not obliged to fulfil any form of burden of proof on any issue at the trial. Each defendant is not required to prove its/his innocence or to cast doubt on any of the allegations made by the prosecution. On the other hand, since D2 has testified in court, his evidence forms part of the overall evidence. Consequently, no matter whether all or part of D2’s evidence is for or against the defence of D1 and/or D3, I must consider D2’s evidence when considering the verdict against each defendant. 136.I must consider the circumstances against and in favour of each defendant separately and then reach an individual and separate verdict as to whether each defendant is guilty or not guilty. Since the evidence against each defendant is not the same, the verdict for each defendant need not be the same. In other words, whether or not a defendant is found guilty has nothing to do with the guilt or otherwise of the other defendants. 137.All three defendants have no previous criminal conviction record. I bear in mind that their propensity to commit the alleged offences is lower compared to persons with a criminal record or of bad character, and that the credibility of their evidence and/or statements made in and/or out of court is higher. 138.D2 and D3 made statements under caution after arrest. Their statements appeared to contain both parts that were favourable and unfavourable to them personally. Therefore, I must consider their statements under caution as a whole and weigh them together with all the evidence in the case to find the truth. I bear in mind the above guidelines on good character. 139.On the other hand, if the cautioned statement of a defendant contains a part that is unfavourable to the defence of the other defendants, I bear in mind that his cautioned statement is inadmissible as evidence against these other defendants. However, if his cautioned statement contains a part that supports the defence of the other defendants, I must take that defendant’s cautioned statement into account in determining the guilt or innocence of these other defendants. In short, each defendant’s cautioned statement would not be used against any other defendant; it would only be evidence in support of the other defendants. 140.When D2 and each of the prosecution witnesses were giving evidence, I carefully observed their demeanour, which assists me in assessing whether they are honest and credible witnesses. However, I also bear in mind that demeanour alone is not a safe and reliable indicator of the truthfulness of the evidence. I must consider more carefully the inherent probability and credibility of the evidence, and whether the evidence of the witness is in conflict or contradiction with any other facts that are not in dispute or cannot be disputed. 141.I also bear in mind that while I am entitled to infer from proven facts that other facts exist, the first and foremost condition is that the basic facts on which the inference is based must either have been admitted by the prosecution and the defence or have been proved beyond reasonable doubt. Furthermore, if an inference is drawn, it must be the only reasonable and irresistible inference. On the other hand, in making an inference, I can consider the cumulative effect of individual factual circumstances. 142.As D1 did not appear in court for trial, I have the responsibility to consider the grounds of defence for D1 that might be disclosed from the evidence. However, I am not in a position to act as the defence counsel of D1. On the other hand, there is no doubt that the submissions made by D2 and D3 through their legal team greatly assist D1, and this is because if both D2 and D3 are acquitted, D1 cannot be convicted of conspiracy with D2 and D3. 143.I have to rule on the following constitutional and legal issues:
144.As D1 was not present at trial, the prosecution called 33 witnesses to give evidence, and most of the evidence given by these witnesses were already admitted by D2 and D3 under section 65C of the Criminal Procedure Ordinance[53]. Although the legal team of D2 and D3 cross-examined the prosecution witnesses when they gave evidence, they did not seek leave to amend any of the admitted facts set out in Exhibit P1 after the cross-examination, nor did they make any submissions on these basic facts in their closing submission. They did not dispute the time that the 17 articles were taken from Stand News’ official website and social media platforms. That these 17 articles were published by Stand News was also not disputed. The facts admitted by D2 and D3 do not constitute evidence against D1, but I accept that all the prosecution witnesses are honest and reliable, and I accept their evidence. Their evidence proves the facts set out in the Admitted Facts[54] and other facts set out in their statements, which are admissible in the trial of all three defendants. These basic facts include the corporate structure of D1, its shareholders and personnel appointments, the operation of Stand News, the publication of the 17 articles in question A1 to A17 on Stand News’ website and social media, the time of publication as shown in the list in paragraph 19, D2 being the Chief Editor of Stand News at the time of publication of A1 to A15, and D3 being the Acting Chief Editor of Stand News at the time of publication of A16 and A17, and the course of arrest and seizure of evidence, and so on. I do not consider it necessary to set out these basic facts in detail in the Reasons for Verdict. On the basis of these basic facts, I have to rule on the following issues:
G3. Constitutional and legal issues 145.Under section 159A of the Crimes Ordinance, the prosecution in this case has to prove that the three defendants entered into an agreement with each other (and with other persons) which, if such agreement(s) was/were carried out, would have amounted to the commission of an offence by one or more of them (see HKSAR v Harjani Haresh Murlidhar (2019) 22 HKCFAR 446). The prosecution submitted that the publication of the 17 articles was the offence (the offence of publishing seditious publications under section 10(1)(c)) committed by the three defendants and other conspirators when their agreement (i.e., to continuously publish seditious articles in Stand News) was carried out. The prosecution therefore has to prove that at least one of the 17 articles had a seditious intent. 146.Under section 9(1) of the Crimes Ordinance (before its repeal on 23 March 2024) applicable at the material time:
147.Under sections 10(1)(c) and 10(5) (before their repeal on 23 March 2024):
148.It was not disputed by the prosecution and the defence that under section 10(1)(c), the publisher must have knowledge of the contents of the publication and the underlying intention to publish. Apart from that, the prosecution has to prove that the publisher had the mens rea required by the provision. Under the general principles of criminal law, there are three possibilities in terms of levels of the relevant mens rea. The highest requirement is that the publisher must have a specific seditious intent, i.e. must have a seditious intention as specified in Section 9(1). The second level is the publisher must have foreseen the seditious effect as a natural consequence triggered by the article, be aware of the risk but did not pay heed to it, and unreasonably took the risk (i.e. being reckless about the consequences of seditions). The third, which is the lowest level of requirement, is that the publisher must at least have had knowledge of the content’s seditious intention in the articles. 149.The prosecution disagreed with my decision in Lai Man Ling [2022] 4 HKLRD 657 that the publisher must have specific seditious intent[56]. Of the three possibilities, the prosecution argued that it was only necessary to prove the publisher’s knowledge of the seditious content of the article(s) (i.e. the lowest level of requirement mentioned above). It is not necessary to prove the publisher’s specific seditious intent or that he was reckless about the consequences of seditions; and taking a step back, being reckless about the consequences of seditions should also be sufficient to support the charge[57]. 150.Assuming that the mens rea required is specific seditious intent or being reckless about the consequences of seditions, the prosecution still argued that the court could draw inferences from the publisher’s knowledge of the content’s seditious intention in the article(s). And assuming that what is required is the publisher’s specific seditious intent, the prosecution also submitted that it was not necessary to prove that the publisher had all of the seven seditious intentions under Section 9(1), and that it was only necessary to prove at least one of them. 151.In addition, the prosecution pointed out that the words such as “hatred”, “contempt”, “disaffection” and “discontent” in section 9(1) were not further defined in the law. In applying the provision, the court is only required to assess whether the publications have seditious intentions by considering the relevant words in ordinary daily usage. The court is also required to take into account all the circumstances surrounding the publications in question, including the overall context, the target audience, the state of the society at the time of the offence and the public sentiments. The purposes and the preventive nature of the offence of publishing seditious publications should also be considered. Such purposes are the protection of national security and the maintenance of public order (ordre public), such as preventing violence or disturbance arising from interference with the normal operation of governmental institutions. (Constitutional and legal arguments raised by the defence) 152.The constitutional and legal arguments put forward by the defence (D2 and D3) on the offence of publishing seditious publications are set out below:
153.Subsequent to the defence putting forward the above arguments, the Court of Appeal handed down the judgment in HKSAR v Tam Tak Chi [2024] HKCA 231 on 7 March 2024, in which it was held that the relevant words in section 9(1) of the Crimes Ordinance are in conformity with the principle of legal certainty, having considered various local and overseas cases. The Court of Appeal also confirmed the ruling on the offence of publishing a seditious publication in Fei Yi Ming [1952] 36 HKLR 133, that is, the prosecution is not required to prove that the publisher has the intention of incitement to violence. 154.The defence argued that Tam Tak Chi does not resolve all the constitutional and legal issues raised above, and the court still needs to adopt a remedial interpretation in order to uphold the constitutionality of the offence of publishing seditious publications, meaning that the offence includes the following elements which the prosecution must prove: (1) that the publisher has a specific seditious intent, i.e. having the seditious intentions as stated in section 9(1); and (2) the publishing of the relevant publications constitutes a real risk to national security. The defence also maintains the view that operational proportionality applies to the present case. Moreover, it is argued that in view of the particular facts of the case, freedom of speech and of the press would be disproportionately restricted if the court were to find D2 and D3 guilty. (Proper application of section 9(1)) 155.The Court of Appeal in Tam Tak Chi ruled that the relevant words in section 9(1) of the Crimes Ordinance satisfied the principles of legal certainty, and could be regarded as prescribed by law, satisfying the requirement of proportionality, and were therefore constitutional and did not contravene the Basic Law and the Hong Kong Bill of Rights[64]. The Appeal Committee of the Court of Final Appeal also affirmed the Court of Appeal’s ruling, refusing to grant leave to appeal on whether or not the requirements of legal certainty and proportionality in relation to sections 9 and 10 were satisfied (HKSAR v Tam Tak Chi [2024] HKCFA 25). 156.The offence of publishing seditious words under section 10(1)(b) in Tam Tak Chi, like the offence of publishing seditious publications under section 10(1)(c) in the present case, involves seditious intentions as defined in section 9(1). The Court of Appeal pointed out in paragraph 119 of the judgement that the following factors must be taken into account in understanding the relevant words:
157.The Court of Appeal further explained in paragraph 123 of the judgment:
158.In short, the Court of Appeal held that those words such as ‘hatred’, ‘contempt’, ‘disaffection’ and ‘discontent’ in section 9(1) cannot be applied in a vacuum, and that the actual circumstances of the case as a whole must be considered (including the context of the relevant time period), in particular, the legislative purpose of the offence, namely avoiding potential detrimental consequences to national security or public order and safety caused by seditious speeches. The same speech may have different effects in different social, cultural and political settings or with different public sentiments. 159.With regard to the defence submission that there should be certain requirements limiting the extent of the relevant words, the Court of Appeal pointed out in paragraph 123 of the aforesaid judgment that the aim of section 9(1) is to prohibit such speeches which, objectively understood, have the intention of: (1) seriously undermining the legitimacy or authority of the Central Authorities or the SAR Government and their institutions, the constitutional order or status of the HKSAR; and the judicial system in Hong Kong; and (2) seriously harming the relationship between the Central Authorities or the SAR Government with Hong Kong inhabitants; and the relationship among Hong Kong inhabitants. I am of the view that, as demonstrated in the judgment of the Court of Appeal, the required extent of the relevant words is “seriously” undermining or harming. As such, they are not overbroad or arbitrary. In other words, only those speeches which are intended to stir up public sentiments, and to cause the public to develop a “strong” sense of hostility, aversion, disobedience, disrespect, contempt, alienation, or discontent towards the Central Government, and/or the SAR Government, and/or their institutions, so as to incite, induce, or mislead others to deny or question the legitimacy or authority of the regime and the government, or to reject or question the existing constitutional order or status, or speeches which are intended to seriously harm the relationship between the above parties will be ruled as speeches having seditious intentions. 160.The Court of Appeal ruled that the offences set out in sections 9 and 10 of the Crimes Ordinance are prescribed by law, and therefore the defence’s arguments that the literal meanings of those words such as “hatred”, “contempt”, “disaffection” and “discontent” render the definitions of the seditious intentions vague and subjective, and that the scope of application is overbroad and arbitrary, naturally fail. (Section 9(2) not applicable where the intention is to seriously undermine government authority) 161.The Court of Appeal went on to state in paragraph 124 of the judgment that section 9(1) must be read together with section 9(2). Section 9(2) set out four sets of circumstances in which there was no seditious intention.
162.The Court of Appeal pointed out that when sections 9(1) and (2) are properly read together with the fundamental right to free expression, they make it plain that criticising the government, the administration of justice including judgments of the court, or engaging in debates about or raising objections to government policies or decisions, however strong, vigorous or critical they may be, do not constitute seditious intention; and that it provided further clarity in differentiating between lawful and unlawful speech. 163.In Lai Man Ling, I held that the prosecution had to prove not only that the alleged seditious intention was within one or more of the seven limbs stated in section 9(1), but also that the alleged intention was not within any limb stated in section 9(2). There is no dispute between the prosecution and the defence on this point. 164.I agree that, in accordance with section 9(2), pointing out errors in government measures, constitution, legislation or the administration of justice, or even persuading Hong Kong inhabitants to procure by lawful means the alteration of matters as by law established with a view to the remedying of such errors or defects would not constitute any seditious intention. On the other hand, I consider that section 9(2) is clearly not applicable to speeches lacking an objective factual basis but having the intention of seriously undermining the authority of the Central Authorities or the SAR Government and so on. (Whether an intention to incite public disturbance or disorder is an element of the offence) 165.The Court of Appeal held in Tam Tak Chi that as the offence of sedition under sections 9 and 10 of the Crimes Ordinance was the successor to the offence created by the Sedition Ordinance 1938, it was a statutory offence rather than a common law offence of sedition. Incitement to violence, a necessary element of the common law offence of sedition, was excluded by the legislature when the statutory offence was created in 1938. Therefore, incitement to violence was not an element of the statutory offence of sedition. The intention “to incite persons to violence” in section 9(1)(f) of the Crimes Ordinance was added as a new seditious intention when the ordinance was amended in 1970: see paragraphs 63 to 82 of the judgment. 166.The defence submitted that notwithstanding the Court of Appeal’s aforesaid decision, the prosecution still had to prove that both the publication and the publisher had the intention to incite public disturbance or disorder against constituted authority. The defence argument was that when the British colonial government introduced in 1938 the Sedition Ordinance 1938 and the Prohibited Publication Ordinance 1938, it was clear that the Bills were drafted as directed by the Secretary of State of the British Government, based upon a model. By codifying the common law offence of sedition, the British Government drafted the Model Sedition Law and introduced it into different colonies. As a result, there were great similarities in sedition laws across different colonies. The defence argued that the sedition laws of Hong Kong were basically copied wholesale from the British Model Sedition Law rather than being drafted according to Hong Kong’s unique circumstances. This showed that the Legislative Council of Hong Kong did not intend to depart from the requirements in common law when enacting sedition laws. On the other hand, apart from incitement to violence, the definition of the common law offence of sedition also included incitement to public disturbance or disorder. The defence cited Boucher v R [1951] SCR 265, 283 for the definition of the common law offence of sedition:
167.As the Court of Appeal ruled in Tam Tak Chi that the elements of the common law offence of sedition were not applicable to the statutory offence of sedition in Hong Kong, I must reject the defence submission. 168.In addition, I also disagree with the defence submission. According to the legislative records of the Sedition Ordinance 1938, even though reference was made to the Model Sedition Law issued by the British Government, the ordinance was tailor-made for Hong Kong. The minutes of the meeting of the Hong Kong Legislative Council on 28 July 1938 contained the following record:
169.By “the next Bill on the agenda”, the Attorney General referred to the Prohibited Publication Ordinance 1938. He also stated that the legislative intent was to “replace” the then-existing law on sedition with these two ordinances. The first point in the “Objects and Reasons” section of the Bill stated: “This Bill is based upon a model Ordinance compiled by direction of the Secretary of Secretary” (i.e. the Model Sedition Law referred to by the defence). The third point stated: “Tables are appended hereto showing the variations between the Model and this Bill and comparing the provisions of the Bill and the law relating to the importation into this Colony of seditious or undesirable literature as contained in the Seditious Publications Ordinance, 1914, the Importation and Exportation Ordinance, 1915, the Post Office Ordinance 1926, and the regulations under the Emergency Regulations Ordinance, 1922.” 170.The contents of the table attached to the Bill comparing the then-existing law with the Bill were as follows:
(1) Common Law
171.As clearly shown by the table, when the Secretary of State directed the drafting of the Model Sedition Law, the definition of the common law offence of sedition was based on the definition expounded by Stephen J instead of the definition in Boucher (which was decided on 18 December 1950). The Bill stated that the meaning of “sedition” in the Bill “follow[ed] Stephen J’s definition very closely”, implying that it was not exactly the same as the definition in common law. As also illustrated by the table, the intention “to endeavour to seduce any member of His Majesty’s forces from his duty or allegiance to His Majesty”, which did not come within the purview of the common law offence of sedition, was also added as a limb of seditious intention in clause 3(1)(vi) of the Bill to bring the Bill on a par with the Incitement to Disaffection Act 1934 of the United Kingdom. As shown by the table, the Bill dealt with the offence of sedition by consolidating all the then-existing laws in 1938, including the common law, the Seditious Publication Ordinance 1914, and the relevant parts of the Emergency Regulations 1931. The Bill also included the time limit for prosecution and the issue of search warrants, which were not found in the common law. 172.The 1938 Bill was passed and became the Sedition Ordinance 1938. The following list shows the similarities and differences between the definitions of the statutory offence of sedition (including the Sedition Ordinance 1938 and the Crimes Ordinance) and Stephen J’s definition of the common law offence of sedition (recorded in Article 93 (Seditious Intention Defined), in A Digest of the Criminal Law, 3rd Edition, London, MacMillan and Co. (1883) by Sir James Fitzjames Stephen):
173.As shown by the comparison, one of the limbs of seditious intention in Stephen J's definition of the common law offence of sedition was “to incite any person to commit any crime in disturbance of the peace”, which was clearly not replicated in the statute of Hong Kong when the statutory offence of sedition was created under the Sedition Ordinance. This shows that the colonial government did not consider incitement to violence or disturbance or disorder to be a necessary element of the statutory offence of sedition, or else it would have expressly retained Stephen J’s definition in the ordinance. This must have been the legislative intent because the Prohibited Publication Ordinance 1938, enacted at the same time as the Sedition Ordinance 1938, authorised the Governor of Hong Kong, in his absolute discretion, to prohibit the importation of any publication contrary to the public interest into Hong Kong: see sections 2 and 3 of the ordinance. Whether or not the imported publication would incite violence was not a statutory consideration. Given this legislative background, it would be even more unlikely that the Sedition Ordinance 1938 had an implied term to include the intention to incite violence or disturbance or disorder as a necessary element of the offence of sedition. This obviously was also one of the reasons why it was necessary to add the intention “to incite persons to violence” as a new limb of seditious intention in the ordinance in 1970. 174.Therefore, even without the Court of Appeal’s judgment, I would have rejected the defence submission. (Real risks to national security) 175.The Court of Appeal pointed out that safeguarding national security must be balanced against the protection of fundamental rights such as freedom of speech and freedom of publication[65]. To satisfy the principle of proportionality, the speech constituting the offence must be potentially detrimental to national security, public order and safety in the relevant context. 176.In other words, when a speech is assessed as having seditious intentions, the relevant actual circumstances must have been taken into account, and the speech must have been deemed thereunder to be potentially detrimental to national security and has to be stopped. In addition, the intention concerned is the intention to seriously undermine the legitimacy or authority of the Central Authorities or the SAR Government, etc. The Court of Appeal stated in paragraph 127 of Tam Tak Chi that it was irrelevant whether the audience were so incited by the seditious speech. Therefore, as long as the relevant speech or publication is found to have the seditious intentions under section 9(1), I find that there is no need to separately consider whether the speeches constitute any real risks to national security. (Publisher must have a specific intent or must be reckless about the consequences) 177.In Tam Tak Chi, the trial judge ruled that the defendant had specific seditious intent. The Court of Appeal therefore did not find it necessary to decide whether the offence required the publisher to have specific seditious intent (i.e. specific intent)[66]. 178.In Lai Man Ling, I ruled that apart from the publication having a seditious intention of section 9(1), the prosecution also had to prove that the publisher himself had a seditious intention of section 9(1). However, the publisher did not need to have seditious intentions mirroring exactly in every respect those of the seditious publication so long as he shared at least one of the same seditious intentions: see paragraphs 73 to 78 of the judgment. In other words, in Lai Man Ling, I ruled that the offence of publishing seditious publications was an offence of specific intent. 179.In the present case, the prosecution took the view that the requisite mens rea was the publisher’s knowledge of the article’s seditious intent. According to the prosecution’s stance, the publisher could still be guilty of the offence without specific seditious intent, or even if there was no contemplation of any seditious effect. The defence submitted that the ruling of Lai Man Ling was correct. My rulings in previous cases are not binding and I must decide this issue again in the light of the submissions of the prosecution and the defence in this case and in the light of all the additional authorities. 180.Sections 9 and 10 of the Crimes Ordinance are unclear as to whether the publisher must have a seditious intention. In Kulemesin v HKSAR (2013) 16 HKCFAR 195, the Court of Final Appeal said in paragraph 38 of its judgment:
181.For the three reasons relied upon by me in Lai Man Ling, namely: (1) In general, when interpreting a statute, the common law presumes that the mens rea of an offender is necessary for conviction, and the prosecution failed to show that this presumption had been rebutted; (2) the old provisions assisting the prosecution to prove the mens rea of an offender were repealed in 1970, and they were repealed not for the reason of doing away with the burden of proof being imposed on the prosecution, but to require the prosecution to prove on their own the offender’s intention unaided by any statutory presumption; and (3) in Fei Yi Ming, when the trial judge directed the jury, he also asked them to consider the publisher’s intention. It is still my view that a publisher must have a specific intent before he can be convicted. I am also of the view that the prosecution's position fails to adequately protect fundamental rights such as freedom of speech and freedom of publication. 182.On the other hand, the Court of Appeal made it clear in Tam Tak Chi, at paragraph 119(3), that “Very often, words can set events into action. Seditious words may potentially lead to seditious acts or activities endangering national security, public order or safety. In punishing dissemination of seditious words, the offence aims at avoiding such potential detrimental consequences, which is imperative in safeguarding national security.” A sedition offence is therefore an offence targeted against the consequences of the crime. Given such circumstances, in accordance with the principles laid down in Kulemesin mentioned above, taking into account the fact that the offence of publishing seditious publications is intended to prevent speech from causing potential detrimental consequences to national security, I am of the view that the earlier decision in Lai Man Ling, whereby a publisher is guilty only if he has the specific seditious intent, is ineffective in safeguarding national security. This is because even if a publisher is reckless as to the consequences of sedition, as long as there is no specific seditious intent, he cannot be found guilty, thus defeating the law’s preventive nature. 183.On reconsideration, I consider that the appropriate balance is to require the prosecution to prove either that the publisher had the seditious intentions (specific seditious intent) of section 9(1) at the time of publishing seditious publications, or that the publisher knew at the time of publishing that the seditious publications had the seditious intentions of section 9(1) but was reckless as to the consequences and still published them (reckless as to the consequences of sedition). I also repeat the ruling in Lai Man Ling that a publisher does not need to have exactly the same seditious intentions mirroring those of the seditious publications, and that only at least one being the same will do. I rule that the offence of sedition is an offence of specific intent, and that specific intent means that a publisher who publishes seditious publications with specific seditious intent, or is reckless about the consequences of seditions and knowingly takes the risk, will be held liable. This principle would not only safeguard national security effectively but also properly protect those fundamental rights such as freedom of speech and freedom of publication. 184.I am of the view that when a speech, in the relevant context, is assessed to be causing potentially detrimental consequences to national security, and having the intention of seriously undermining the authority of the Central Authorities or the SAR Government, and thus has to be stopped, the resulting conviction would as a matter of course be in line with the operational proportionality principle, and therefore no further considerations will be required. The Court of Final Appeal in HKSAR v Ng Ngoi Yee & ors [2024] HKCFA 24 also affirmed that when a court applies provisions that are constitutionally valid when considering whether a defendant is guilty, there is no need to consider separately whether the conviction is in accordance with the principle of operational proportionality[67]. 185.In Tam Tak Chi, the Appeal Committee of the Court of Final Appeal also affirmed the decision of the Court of Appeal in not granting leave to appeal on this ground of appeal in relation to the requirements of legal certainty and proportionality in respect of sections 9 and 10: [2024] HKCFA 25. 186.For the above reasons, I ruled that the defence failed on the constitutionality challenges, whereas the prosecution was required to prove that the defendants had the specific intent mentioned above in order to secure a conviction. 187.As D1 is an online media, D2 and D3 are journalists, and the charge alleges that they conspired to publish seditious publications, this case also involves freedom of the press. However, legal provisions protecting and restricting press freedom are identical to those protecting and restricting freedom of speech. The legal principles of the offence of sedition set out above are therefore fully applicable. 188.Regarding the duties and roles of the press, the defence set out in section F.2 of their written closing submission the principles and cases of the European Court of Human Rights (ECtHR) which they considered important, pointing out that the media had a duty to disseminate information and views on matters of public interest. They also stressed that this was not only about the duty of the media, but also about the right of the public to have access to such information and views; otherwise the press could not play its role as a fourth power to monitor the government. The defence also cited the “BBC Editorial Guidelines”[68], “Council of Europe Resolutions 1003 (1993)”[69], the Hong Kong Journalists Association (HKJA) - Code of Ethics[70], the Hong Kong Journalists Association (HKJA) - Code of Professional Conduct for Journalist[71], and the Hong Kong News Executives’ Association (HKNEA) – Code of Conduct[72], and set out some of the principles. 189.In my view, when considering the publication of speeches, information and articles by the media and its workers, the only restrictions they must observe and discharge are “special duties and obligations”, including “safeguarding national security or public order (ordre public), or public health or morals”: Article 16(3) of the Hong Kong Bill of Rights, and Article 19(3) of the International Covenant on Civil and Political Rights (ICCPR). There is no statutory requirement under the Laws of Hong Kong for the media to comply with any professional codes, nor is there a law restricting the media from becoming a political or advocacy platform, but any speech or publication that endangers national security or public order will be restricted. 190.The prosecution and the defence cited a large number of cases of the European Court of Human Rights (ECtHR) to illustrate the duties and responsibilities of the media, in particular those of editors. I found that the “Guide on Article 10 of the European Convention on Human Rights – Freedom of Human Rights (updated on 31 August 2022)” prepared by the European Council provides a brief but appropriate summary:
191.Paragraph 329 of the above summary is obviously the most important. It states that the protection afforded by Article 10(2) of the ECHR to journalists in reporting matters of general interest should be subject to the condition that they must “act in good faith and on accurate factual basis and provide ‘reliable and precise’ information in accordance with the ethics of journalism”. 192.The defence cited Council of Europe Resolutions 1003 (1993) Ethics of Journalism”[73]. Paragraph 4 therein stresses the importance of verification of facts and impartiality.
193.In addition, there must be a sufficient factual basis even for a value judgement: Feldek v Slovakia (Application no. 29032/95) (12/07/2001).
194.It is worth noting that modern propaganda does not rely on a pack of lies but a mix of different kinds of truth.
195.D2 referred to his editorial policy and principles when he testified. I do not have to rule on the correctness of his editorial policy and principles, but only need to make the point that D2 emphasised the concept of the “marketplace of ideas” introduced by Mr Justice Holmes in Abrams v United States (250 U.S. 616 (1919)) on 21 October 1919. However, there are limitations to this concept. Soon after Mr Justice Holmes handed down the judgment, Walter Lippmann, a famous journalist, wrote to him on 18 November 1919 stating that “the press, propaganda, and censorship blocked the road to truth”. In Graham William Phillips v The Secretary of State for Foreign, Commonwealth and Development Affairs [2024] EWHC 32 (Admin), Mr Justice Johnson pointed out:-
G4. No unfairness in the trial 196.In addition to making the above constitutional and legal arguments, the defence argued in its closing submission that the trial was unfair in the following ways:
197.The defence pointed out that the 17 articles accounted for a very small number out of the over 20,000 articles published by Stand News during the material time, representing less than 1% of the total, indicating that Stand News was not a platform for the dissemination of seditious publications. 198.The defence argued that the prosecution was not entitled to prove conspiracy by including in cross-examination other Stand News reports beyond the 17 articles. However, I have ruled that MFI-4 and the related news reports are relevant to prove whether the defendants had the mens rea and may be used by the prosecution in cross-examination (see paragraph 114 above). The defence cited the judgment of HKSAR v Chen Keen (2019) 22 HKCFAR 248 which related to overt acts of conspiracy, but is not relevant to publication intention. 199.Regarding the organisational nature of Stand News, I am of the view that the prosecution’s modification of its allegation that Stand News became a political platform only when it published seditious articles had the effect of narrowing the time frame in which Stand News became a political platform. As the defence case was that Stand News had never been a political platform, thus the narrowing of the prosecution case did not, in my view, have an impact on the defence case and did not constitute unfairness in the trial. The defence complained about the different descriptions of political platforms, such as “it had long been publishing articles that painted a negative picture of the government or the establishment” and “had it not been for the arrest of D2-D3, [each of the defendants] would, together with other persons, continue to publish seditious articles on the Stand News website and the social media platforms of Stand News”, etc. I am of the view that these are not of substantial relevance and do not amount to unfairness in the trial. 200.The prosecution all along alleged that D1 and D2 were conspirators in this case. If D2 was the sole principal of D1, the charge of conspiracy could not be substantiated. It is for this reason that I am of the view that it is clear that the prosecution was suggesting that D2 agreed with another directing mind and will of D1 to commit the offence. It is also clear from the evidence that apart from D2, Tsoi was the only other director of D1 at the material time of the charge. The prosecution’s allegations and evidence are clear, and the fact that the name of Tsoi was not mentioned in cross-examination has not rendered the trial unfair. 201.On the whole, I am of the view that there has been no unfairness in the trial. G5. Articles with seditious intentions G5.1 Findings on the context of the relevant time period 202.In the light of the Court of Appeal’s judgment in Tam Tak Chi, I have to consider the actual circumstances, including the context of the relevant time period, as to whether the 17 articles have seditious intentions. 203.In R v Aldred (1909) 22 Cox C.C. 1, Mr Justice Coleridge’s directions given to jurors on how to decide whether a defendant had committed seditious libel included:
204.I must therefore consider the circumstances in the context of the relevant time period when the alleged offence took place, and in particular whether the public was susceptible to incitement during that period, “or whether the social setting had appeared in which, in the words of Mr Justice Coleridge, ‘a spark will explode a powder magazine’”. 205.The prosecution asked the court to make findings, through taking judicial notice, on some incidents that took place during the period specified in the charge and around the time the Hong Kong National Security Law was promulgated. The defence stressed that matters of which the court could take judicial notice must be obvious facts so that they did not require any proof of evidence. I agree that these matters must be facts that are commonly known. As mentioned in paragraph 114 above, during the course of D2’s evidence, I allowed the production of MFI-4 and news coverage of the related events by the prosecution[74]. I have made it clear that these documents merely served to assist the prosecution in their cross-examination of D2 by reminding D2 of the events, and that they were not evidence in themselves; and that only the testimony of D2 in the courtroom in relation to those matters were to be taken as evidence. I am mindful of the purpose of these documents. On the other hand, D2 also produced quite a number of documents in support of his evidence during his examination-in-chief and re-examination by Ms Eu SC. They included news reports and feature articles of Stand News and other media. I am of the view that the factual descriptions in these news reports and feature articles must have been accepted by D2 as true and accurate, and therefore I can admit them as factual evidence. In their closing submission, the prosecution cited some court judgments in trials arising from some incidents[75]. The defence argued that the court should not take these cases into consideration because D2 had not been given any opportunity to respond to them in court. I accept the defence submissions save for those facts referred to in these cases which can also be established on another basis such as judicial notice. 206.Whilst the time of the offence alleged in the charge is between 7 July 2020 and 29 December 2021, the context of the relevant time period was plainly interlinked with earlier events in Hong Kong. In considering the social context of the material time, an appropriate starting point would as a matter of course be the Anti-Extradition Law Amendment Bill Movement (“anti-ELAB Movement” or “Movement”) which took place in 2019. (HKU Public Opinion Poll Results in June 2019) 207.According to a news report by Stand News on 6 June 2019[76], the Scholars’ Alliance for Academic Freedom, a group of about 60 academics from different institutions, had commissioned the Public Opinion Programme at the University of Hong Kong to conduct a public opinion survey on the Extradition Law Amendment Bill. A written survey was conducted between 29 and 31 May and on 3 June 2019, during which 1,002 Cantonese-speaking Hong Kong residents of age 18 or above were interviewed. Results showed that 66% of the interviewees either disagreed with or strongly disagreed with the extradition of Hong Kong people to the Mainland for trial, whereas 17% either agreed or strongly agreed. Those who disagreed with the notion expressed that the amendment would lead to a loss of their confidence in “one country, two systems” should it be passed. It can be observed that even at the very initial stage of the anti-ELAB movement, about 60% of the public was already holding sceptical, dissatisfied or even distrustful attitudes toward the government. (The CUHK Public Opinion Polling Report: situation between June and December 2019) 208.The defence produced the “Report on Public Opinion during the Anti-Extradition Bill Movement in Hong Kong” (“CUHK Public Opinion Polling Report”)[77] . This research was conducted by the Centre for Communication and Public Opinion Survey of the Chinese University of Hong Kong (“CCPOS”). Its aim was to shed light on the anti-ELAB movement in 2019 and public sentiment thereon. The research was comprised of two parts: (a) on-site protest survey: Among the 26 protests (including 11 large-scale public processions, 8 static public meetings, and 7 dynamic public meetings) that took place between 9 June and 8 December 2019, CCPOS interviewed 17,233 randomly selected protesters at the scenes of protests (paragraph 4.1.1 of the report), and (b) telephone surveys: CCPOS conducted five rounds of monthly territory-wide telephone surveys between 23 May and 14 October 2019, with a total of 3,899 persons interviewed. Thereafter, CCPOS was commissioned by the Independent Police Complaints Council (IPCC) to conduct another round of telephone surveys between 7 November and 13 December 2019, with a total of 2,008 persons interviewed. In other words, from May to December 2019, CCPOS interviewed a total of 5,907 members of the public through six rounds of telephone surveys (paragraph 4.2.1 of the Report). This report was prepared by CCPOS between December 2019 and January 2020 (see page 15 of the report’s preamble). It was produced by the defence with no objection by the prosecution. The data and survey findings of this report were also adopted by the IPCC in their report[78]. I accept that the findings of this report are a reflection of the public sentiment in the HKSAR from June to December 2019. 209.In relation to the research methodology of the on-site protest surveys, no matter which sampling method was used by the CCPOS, since the great majority of the people who appeared at the scenes of protests were likely protesters, they were probably dissatisfied with certain aspects of the regime or the government. The findings of this part of the survey squarely reflects the circumstances of the protesters. On the other hand, the telephone surveys were territory-wide surveys with random sampling, which should be able to reflect the circumstances and public opinions of all Hong Kong people. It can be seen from the report that the issues studied in the on-site protest surveys included who had protested, why they had protested, how they had protested and attitudes towards protests. In the telephone surveys, the issues studied included views on the police, views on the protesters and the Movement, views on the escalation of force, as well as news acquisition and political participation. The following points from the report are worth noting. 210.Firstly, the report provides the demographics of the protesters. From paragraph 5.1.1 of the report, it can be seen that the proportion of male respondents (40.5% to 64.2%) at the scenes of the protests was higher than that of female respondents (34.4% to 59.5%). As regards the age of the protesters, the report states that young people were the most active in the Movement. According to paragraph 5.1.1 and Table 4, the proportion of respondents aged 34 or below ranged from 41.6% to 93.8%. Table 4 shows that in 22 of the protests, the proportion was 60% or above. 211.The report also provides a further age breakdown of the young protesters. According to paragraph 5.1.1 and Table 5, those aged between 20 and 24 accounted for 9.4% to 54.2% (but most were roughly 20% to 30%), while those aged between 25 and 29 accounted for 11.6% to 34.2% (but most were roughly 10% to 20%). In other words, young people aged between 20 and 29 were the most active participants. On the other hand, protesters aged 19 or below also accounted for 3.3% to 22.5%. Judging from their age, I believe most of them were secondary school students. In other words, since 9 June 2019, there were already secondary school students “taking to the streets”. In 15 out of the 26 on-site protest surveys, the group aged 19 or below accounted for 10% or more of the protesters. 212.Regarding the educational attainment of the protesters at the scenes, paragraph 5.1.1 and Table 6 of the report show that the education level of the participants of the Movement was generally high with the vast majority of the respondents (66.8% to 88.5%) having received tertiary education or above. 10.5% to 31.0% of the respondents had received secondary education and less than 4% had received primary education or below. 213.Regarding the socio-economic status of the protesters at the scenes, CCPOS asked the respondents to self-report their families’ socio-economic status, and the answer options were “upper class”, “middle class” and “lower class”. According to Table 7, “upper class” accounted for less than 2% of the respondents, while “middle class” (41.9% to 64.9%) and “lower class” (28.1% to 48.6%) were the backbone of the Movement. 214.Regarding the political orientation of the protesters at the scenes, paragraph 5.1.2 of the report states that the survey provided a series of options for the respondents to indicate their political orientation, which were categorised into “pro-establishment”, “moderate democrat”, “radical democrat”, “localist”, “centrist / with no political affiliation” and “others”. “Localist” was defined as “people who not only support democracy, but also stress protecting Hong Kong’s local interests when facing Mainland China”. According to paragraph 5.1.2 and Table 8 of the report, “moderate democrats” comprised the Movement’s core participants. They accounted for 30% to 40% of the total number of respondents throughout the Movement. The report also states that “localists” comprised the second most prominent protest constituency. Excluding the “exceptionally high” volume of localist involvement on 16 August reported at 52.5%, the proportion of “localists” generally ranged from 20% to 40%. 215.My observations after reading Table 8 are as follows. The figures show that when these surveys first began, there were indeed more “moderate democrats” than “localists”. On 9 June, “localists” only accounted for 27.0%, while “moderate democrats” accounted for 43.2%. However, in each of the 17 protests from 27 July to 8 December, “localists” accounted for more than 30% of the protesters, and it was even higher than 35% in 11 of these protests. Compared with “moderate democrats”, “localists” accounted for a higher percentage than “moderate democrats” in 9 of the protests. For example, in the last survey (8 December), “localists” accounted for 38.2%, while “moderate democrats” only accounted for 33.7%. I am of the view that since 27 July, “localists” were no longer just the second most prominent protest constituency of the Movement, but became as important as the “moderate democrats” in terms of the number of people. 216.Furthermore, according to paragraph 5.1.2 and Table 8, across the 26 surveys, the proportion of those who identified as being “radical democrats” was on a gradual rise. Their proportion increased from 3.2% on 9 June to 7.5% on 17 June, and remained at this level in the subsequent surveys conducted between July and early August. It increased to around 10% in the mid-August survey and further rose to 15.5% on 8 December. 217.Paragraph 5.1.2 of the report also points out that during the same period the proportion of protesters who were “centrists / with no political affiliation” dropped from around 20% during the early stages of the Movement to less than 10% in October, and to its lowest level of 4.9% in December. According to CCPOS, there were two possible reasons for the drop: either there was a decline in their participation level in the Movement, or a shift in their political orientation with the development of the Movement. 218.I notice that from Table 8, for the first five surveys, on 9 June 21.1% of the respondents self-identified as “centrists / with no political orientation” and then on 12 June, the next protest, the percentage of those who self-identified as “centrists / with no political affiliation” suddenly went up to 38.9%; but in the following three protests (on 16, 17 and 21 June), the percentage of those who self-identified as “centrists / with no political affiliation” returned to about 21%. The percentage kept dropping since then and never returned to the 21% level. It fell to 4% in the last survey conducted on 8 December. Judging from this, the result of 38.9% obtained on 12 June seems to be a bit unusual. I believe that those who self-identified as “centrists / with no political affiliation” at that time might quite possibly be not answering truthfully, but were hiding their real political orientation that they were, for instance, radical democrats or localists. In any case, according to the abovementioned figures, as the anti-ELAB movement continued to develop, the political orientation of the protesters seemed to be getting increasingly radical and anti-government, and the localist camp was also gaining strength. 219.Regarding the social movement experiences of the protesters on-site, according to paragraph 5.1.3 and Table 9 of the report, of the 24 surveys conducted, except for the one on 16 June (44.3%), 50% or more of the respondents in each survey indicated that they had taken part in the Occupy Movement / Umbrella Movement. This included over 60% in 15 of the surveys (among which over 70% in 5 of the surveys). On 9 June, 61.8% of the respondents indicated they had taken part in the Occupy Movement / Umbrella Movement. For the subsequent one on 12 June, the percentage was as high as 76.6%. (i) Characteristics of the 6.12 protesters 220.To assist in understanding the profiles of the protesters on 12 June 2019 (i.e. the day of charging at the police line at the LegCo), the data show that (a) 53.8% of the protesters were male and the rest were female; (b) 62.1% of the protesters were aged between 20 and 29 and 19% were aged between 30 and 34; (c) 86.3% of the protesters were tertiary educated or above; (d) 91.7% belonged to the middle to lower class; (e) 25.4% identified themselves as localists and 29.5% identified themselves as moderate democrats, but the figure of those who self-identified as centrists / with no political affiliation was unusually high (38.9%), and (f) 76.6% of the protesters had taken part in the Occupy Movement / Umbrella Movement. There is no official figure for the number of protesters on that day. However, the protesters surrounded the entire Legislative Council and they were all over Tim Mei Avenue, Lung Wo Road, Lung Wui Road and Tim Wa Avenue and it can be inferred that there were no fewer than 10,000 protesters. 221.These figures are clearly in line with the Stand News feature article, “How did the pre-publicised storming take place?” (published in Stand News paper publication News Stand[79]). Interviews conducted by Stand News reporters at the scene on that day (12 June) show that the great majority of the protesters had participated in the Occupy Movement / Umbrella Movement. It also reported on the political beliefs and attitudes of this group of protesters about five years after the previous movements. The following are some examples.
222.From this article, it can be seen that right from the beginning the protesters on that day did not intend to just occupy the roads around LegCo to prevent Members from entering LegCo to attend the meeting. Similarly, they did not intend to just block roads to express their demands peacefully. As shown in the article and photos, the protesters on that day had already prepared helmets, goggles, masks, gloves, umbrellas and other materials. They were ready to charge and occupy LegCo at any time. In other words, outside LegCo at that time was a large group of middle and lower class young people with high education levels. They had participated in the Occupy Movement / Umbrella Movement about five years ago. By way of judicial notice, I can be sure that the Occupy Movement / Umbrella Movement took place between September and December 2014; and that the protesters’ demand was to fight for genuine universal suffrage as defined by them; and that the occupation and blocking of roads for more than 70 days was ended by police dispersal action. The protesters did not achieve anything. It was highly likely that this group of participants in the Umbrella Movement were influenced by localism, Hong Kong nationalism and even the proposition of Hong Kong independence that had begun to become popular and was discussed in the university sector and society at that time. In January 2015, the then Chief Executive of the HKSAR, Mr Leung Chun-ying, pointed out in his Policy Address that Undergrad, the official magazine of the Hong Kong University Students’ Union, had featured a cover story titled “Hong Kong Nation: Self-Determination in Destiny” in February 2014, and had published the book “Hong Kong Nationalism” in 2013 which advocated that Hong Kong should “find a path to self-reliance and self-determination”. At that time, Chief Executive Leung warned that the public must stay alert to the erroneous propositions of Undergrad and other students, including the Occupy Movement student leaders. Brian Leung Kai-ping was the editor-in-chief of Undergrad at that time. An interview of Brian Leung Kai-ping was also published in the Stand News paper publication, News Stand. I believe that when the articles about localism and Hong Kong nationalism were published, the people who had participated in the Occupy Movement / Umbrella Movement were studying in universities or would soon be; and they were the first ones to come across these discussions and proposition. It seems that five years after the Umbrella Movement, these people had became more entrenched in the concept of localism. Their means of pursuing their political demands were also deeply influenced by the Sunflower Movement in Taiwan, and they tended to adopt increasingly radical and non-peaceful means. Of course, between 2014 and 2019, Hong Kong also witnessed incidents related to the development of localism, for example, the Mongkok riot in 2016, and Edward Leung Tin-kei of Hong Kong Indigenous running for the 2016 Legislative Council by-election in the New Territories East under the slogan “liberate Hong Kong, revolution of our times”[80]. 223.In the demonstration and clash on 12 June 2019, the participants had in advance prepared for storming the Legislative Council, even those, it is believed, who had not participated in the Occupy / Umbrella Movement. According to the above articles in Stand News, before that day, some people had already rallied participants for the demonstration through the messaging app Telegram, and had divided the protesters into different groups, including the sentinel group, the propaganda group, the supplies group, the strategic group, the secondary school students group, the Christian group, and so on. On 12 June, the protesters’ discussion was just mainly about the timing of commencing the escalated operation, with 3 o’clock or 6 o’clock being discussed the most. The author described that, “on that day, the protesters in Admiralty, at the Central Government Offices, were on alert, ready to escalate and engage in combat at any given moment”. This shows that even at the very early stage of the demonstration, at least quite a number of protesters were no longer only resorting to peaceful means in pursuit of their demands. (ii) Localist political demands 224.Furthermore, the demands of the protesters no longer only focused on the Fugitive Offenders Ordinance, even before 12 June 2019. As shown in the photograph published on the first page of the News Stand, during the procession on 9 June 2019, behind the big banner with “Reclaim Hong Kong” against a yellow background, the protesters held up seven flags with the words “Hong Kong Independence (in Chinese) HONG KONG INDEPENDENCE” written against a blue background. 225.From an article of Ming Pao dated 9 August 2019 produced by the defence which read “Lee Lap-fung: Legislative amendments, police power, revolution of our times – Looking at the focus of the movement from an on-site survey at the procession”[81], it can also be seen that in a short period time of around two months after the procession on 9 June 2019, the then Chief Executive Mrs Carrie Lam Cheng Yuet-ngor had already brought up in a press conference that even though the disputes over the amendments to the Fugitive Offenders Ordinance had come to an end, the demands of the protesters were no longer confined to the legislative amendments alone. She reprimanded the extreme protesters for proposing “liberate Hong Kong, revolution of our times” and defacing the national emblem and national flag, which were acts challenging national sovereignty, undermining the prosperity and stability of Hong Kong, and even leading to the destruction of Hong Kong. The Director of the Hong Kong and Macao Affairs Office, ZHANG Xiaoming, also said that the incident had the characteristics of a colour revolution. It can be seen from this that even at the very beginning of the movement, the idea and even acts of striving for Hong Kong independence had, at the very least, started brewing in the public space. 226.According to paragraph 5.2.3 and Table 14 in CUHK’s public opinion survey, among the six demonstrations held on 4 August (Tseung Kwan O), 4 (Western District), 10, 11, 13 and 16 August in 2019, in terms of political slogans, those who had chanted the slogan “liberate Hong Kong, revolution of our times” (65.3% to 81.5%) were 20% to 30% more than those who had chanted “I want genuine universal suffrage” (45.8% to 53.7%). This shows that the demands at that time had already shifted away from following the provisions for universal suffrage as set out in the Basic Law, and had become more radical political demands which had originated from the Hong Kong Indigenous. As for the situation after 16 August 2019, while the CUHK’s public opinion survey did not provide any data, I can take judicial notice and find that, on 1 July 2020, when Tong Ying-kit committed the offence of incitement to secession by driving a motor cycle, a flag with the words “liberate Hong Kong, revolution of our times” was hoisted on the vehicle. 227.The CUHK’s public opinion survey suggested that the intensity of the demonstration was unprecedented. The Court of Final Appeal set out the relevant facts in Part C1 of Kwok Wing Hang & Others v Chief Executive in Council & Another [2020] HKCFA 42, and in paragraph 3 of HKSAR v Lai Chee Ying [2021] HKCFA 3 that, on 11 November 2019, a citizen was doused with inflammable agent and set on fire during a dispute in which he had rebuked a protester for vandalising a railway station, and he suffered extensive burns to his body; on 13 November, a 70-year-old cleaner was killed by a stone thrown by a protester. All these facts are within my judicial notice. In short, starting from 12 June 2019, and not until at least the end of the PolyU incident in December 2019, violent incidents occurred in one or multiple places in Hong Kong every week. There was absolutely no chance that the SAR Government and the Central Government would consent to the protesters resorting to these violent acts in order to call for a change in the political system. These confrontations would only go on without an end in sight. 228.On page 95 of the CUHK’s public opinion survey, it was mentioned that even though the demonstrations were unprecedented in terms of intensity, this movement was different from the previous ones because of the rare and prolonged co-existence of peaceful demonstrations and militant confrontation. The findings of the survey show that the protesters very much accepted radical acts throughout the Movement. Looking at the on-site surveys of multiple demonstrations, most of the respondents believed that: (1) radical demonstrations could exert pressure on the government to listen to public opinion (around 50% to 60% in most surveys); (2) the greatest effect could only be achieved through the coordinated efforts of radical demonstrations and peaceful assemblies (around 80% to 90%); (3) when the government refused to listen to public opinion, radical demonstrations were acceptable and understandable (over 90% in most cases). 229.The protesters also remained united. According to page 98 of the report, despite the escalation of force by some radical protesters, the protesters generally remained united in the Movement, and the violent behaviour did not cause moderate protesters to “sever ties” with them. In the surveys conducted on-site at the demonstrations from July to December, the surveyors found that there was a rather high level of solidarity among the protesters. The vast majority of respondents (over 90%) believed that the radical protesters were speaking out for them; that they were in the same boat with the radical protesters; and they felt that they were also members of the radical protesters. These results show that the two slogans of the movement, “brothers climb mountains, but by their own efforts” and “no snitching, no severing of ties”, were effective in uniting the non-violent and militant protesters. 230.It is also stated on page 99 of the report that apart from the protesters, there was also considerable solidarity among the general public. The territory-wide telephone survey with Hong Kong citizens revealed that although the respondents did not approve of many of the radical acts in the demonstrations, they were sympathetic towards the protesters. For example, most respondents agreed that radical demonstrations were understandable when the government did not heed public opinion. Moreover, most of the respondents blamed the Hong Kong Government for the violent clashes, while only a small portion of the respondents (about 10%) blamed the protesters. (2019 District Council Election) 231.From the above survey findings, it can be said that the radical behaviour of the protesters was unrestrained because their behaviour had gained the understanding and even support of some political parties and a large number of citizens who claimed to embrace the ideology of being “peaceful, rational and non-violent” during protests. They provided support in spirit and in resources, believing that the militant protesters were speaking out for them and fighting for their demands. This situation was fully reflected in the results of the November 2019 District Council Election. By taking judicial notice, I find that the said District Council election was publicised as a referendum on political views by different parties which respectively mobilised a large amount of manpower and resources to urge voters to vote to signify their political stance, instead of focusing on District Council affairs. In the end, approximately 2.9 million voters cast their votes. The non-establishment camp achieved a landslide victory by getting 389 seats of the 452 elected seats (86% of the total), despite garnering only about 57% of the votes, whilst the pro-establishment camp secured about 41% of the votes but only gained 59 seats. The non-establishment camp gained control of 17 out of the 18 District Councils. D2 mentioned more than once in his evidence that he was surprised by the election results because he had not expected that the radical behaviour of the protesters would not cost them the support of the majority of the public. The election took place on 24 November 2019. As mentioned previously, less than two weeks before the polling, there were incidents of protesters setting a person on fire, someone being killed with a projectile, as well as the riots at the CUHK and PolyU causing congestion on major roads; yet the protesters’ camp still won a resounding victory. In the past, Hong Kong people with different political views did not accept violence, and would even condemn persons who resorted to violence to fight for their political demands. However, by this stage, the situation had changed; one’s stance came first, and the goal was paramount regardless of the means. I am certain that Hong Kong had already entered a period of populism by that time. (Political demands shifting to political reform) 232.The CUHK’s report further points out that the Movement had brought public grievances and distrust towards the police and the government to a level of crisis. As the Movement developed, opinions among the protesters and the public had evolved over time from focusing on individual incidents to placing more and more focus on certain fundamental and structural issues. For instance, there was significant support for restructuring the Police Force and fighting for democratic political reform. According to the report, about 80% to 90% of the interviewed protesters considered that the strive for Hong Kong’s democracy/dual universal suffrage as a “very important” cause for the protests. The report further points out that quite surprisingly, while the protesters thought that the government should be held responsible for the most serious political crisis since the handover, they did not see the stepping down of Chief Executive Carrie Lam and other major officials as a very important goal of the Movement (roughly only 40% to 50% of the respondents viewed this cause as “very important”). The division in objectives suggested that the protesters aimed at seeking a fundamental overhaul of the political system, rather than short-term quick fixes. While the protesters did not target individual officials, I am of the view that they targeted the constitutional order and the status of the the Central Government and the HKSAR. (Number of participants in the protests between June 2019 and May 2020) 233.The CUHK’s report looks into the situation up to January 2020. According to the journal article submitted by the defence and written by Professor Clifford Stott et al, i.e. Patterns of ‘Disorder’ During the 2019 Protests in Hong Kong: Policing, Social Identity, Intergroup Dynamics, and Radicalization. Policing: A Journal of Policy and Practice, Volume 14, Issue 4, pages 814 - 835, published on 17 November 2020[82], over one thousand individual protests took place in Hong Kong between June 2019 and May 2020, involving more than 14 million protesters. I believe that even if the said figure was referring to the headcount of the attendance instead of the number of people, and even if these people did not use any violence during the protests, it is evident that they must have had various grievances against the Police Force, the SAR Government, and/or the Central Government. After the promulgation and implementation of the National Security Law in Hong Kong the grievances among some or all of them would not automatically disappear. They were all potential targets of sedition. (The paralysis of the Legislative Council) 234.The LegCo was paralysed as the House Committee was still unable to elect its Chairperson for half a year, and thus the institution of the private prosecution by a citizen, which was dismissed: Wong Man Hon v Dennis Kwok [2020] HKMagC 4. On 30 June 2020 at the Democratic Kowloon-East Primary Election Forum, when being questioned by Ho Kwai-lam on whether the Civic Party was an opportunistic party, Alvin Yeung Ngok-kiu admitted that Dennis Kwok and other Civic Party members were filibustering in the Council and claimed that they were therefore subjected to “state-level attack”[83]. The government’s bill to stop the riots was strongly opposed by some of the lawmakers. (The collapse of the traditional corrective forces in social relations) 235.I take judicial notice of the fact that during this period of intensely heated political atmosphere, extremely serious rifts developed within society. Political differences deeply divided families. As a result, parents and children lived separately or were not on communicating terms. Examples can be seen in two articles published in News Stand by Stand News featuring Leung Kai-ping and Lo Kin-man. Classmates and friends with different political views would not meet or talk to each other. The CUHK’s report shows that some teachers had participated in the protests. Students in school might not necessarily be able to have the guidance from their teachers or schools. There emerged the yellow and blue economic circles. (35+ Primary Election of the pro-democracy camp) 236.Another election was the primary election held by the pro-democracy camp on 11 and 12 July 2020. At that time, the pro-democracy camp intended to determine the candidates running for the LegCo through the primary election, so as to reduce vote splitting and increase the chances of winning, with a view to obtaining more than 35 seats in the LegCo, and then, forcing the government to respond to their five demands, including the implementation of dual universal suffrage by vetoing government budgets with a majority. This election was held after the Hong Kong National Security Law had come into effect. Although government officials had already pointed out that such election might be illegal, there were about 610,000 voters. This shows that a large number of people were still dissatisfied with, or even opposed, the SAR Government and the Central Government. (The age of rumours/unwillingness to find the truth) 237.During this period when the political climate was extremely heated, there were often unfounded accusations circulating in society. For example, there were allegations that someone had been killed by the police at Prince Edward Station on 31 August and that someone had been sexually assaulted in San Uk Leng, and the police were even linked to the deaths of two young people. After the accusations were made and spread, no one was willing to assist the police in their investigations, and the rumours were promoted as facts. 238.A female known as “the young girl with a ruptured eye” was regarded as the protesters’ totem. It was alleged that she was blinded in one eye after being hit by a police beanbag round which had shattered her goggles, but she never confirmed whether she had actually lost her sight. She even instituted all possible proceedings to stop the police from obtaining her medical report: K v Commissioner of Police [2020] 1 HKLRD 606 (the Court of First Instance hearing); [2021] 2 HKLRD 645 (the Court of Appeal hearing). 239.The Independent Police Complaints Council (IPCC) was originally scheduled to release its thematic study report in early 2020. However, a member of the public brought a judicial review on the ground that the IPCC did not have the power to initiate the study, resulting in the report not being released as scheduled. The relevant court decisions can be seen in: Lui Chi Hang Handrick v Independent Police Complaints Council [2020] 1 HKLRD 533 (leave to apply for judicial review was granted to the applicant, 20/12/2019); and Lui Chi Hang Handrick v Independent Police Complaints Council (No. 2) [2020] 2 HKLRD 911 (the application for judicial review was dismissed by the Court of First Instance). The IPCC subsequently published its report on 15 May 2020. (Broadcasting and media platforms available to the government) 240.D2 testified that the government had ample broadcasting materials for the purpose of launching its information campaign. However, there is no doubt that in a free economy like Hong Kong, the government simply has no control over any media in terms of promoting information on its behalf. 241.The only media organisation directly under the government was Radio Television Hong Kong (RTHK), but even then the government had no control over the operation of RTHK. Some legislators and members of the public considered that while remunerated by the government, some people in RTHK were performing anti-government work, and for this reason a member of the public brought a private prosecution against the then head of RTHK, and the intended charge was “misconduct in public office”. The magistrate refused to issue a summons for the private prosecution: see Kwok Tak Ying v Leung Ka Wing [2020] HKMagC 2. The applicant then appealed, and the Court of First Instance subsequently referred the case to the Court of Appeal, which eventually dismissed the appeal: see Kwok Tak Ying v HKSAR & Secretary for Justice (Interested Party) [2021] 4 HKLRD 841. 242.Moreover, the then staff produced programmes which were sarcastic against the police and the government. The Communications Authority issued a warning to RTHK, which led to the Radio Television Hong Kong Programme Staff Union and the Hong Kong Journalists Association to take legal action against the Communications Authority, and the actions are still pending: Radio Television Hong Kong Programme Staff Union and the Hong Kong Journalists Association v Communications Authority [2021] 5 HKLRD 509, and CACV579/2021 & CACV584/2021 (the appeals are still pending). 243.On the other hand, there were a large number of opinion leaders and/or bloggers in society publishing extensive criticisms of the SAR Government and the Central Government, and there were people swindling money by smearing the government. D2 did not state in his testimony which media could be controlled by the government. In any case, even if government radio stations and departmental websites operated 24 hours a day, the government simply would not be able to control or guide people with opposing views so as to make them receive its information and explanations. 244.In any event, whether or not the government can get its message across to the general public is not something that can be resolved merely by the amount of resources the government can put in. More importantly, it hinges on the willingness of the readers and listeners to receive the broadcast message. 245.It was pointed out in paragraph 5.3.3 of the Research Report on Public Opinion of CUHK that online news media were the most important source of movement-related information for the respondents. In the first four surveys (26 June to 21 July), 83.4% to 89.0% of the respondents indicated that they quite often / very often received movement-related information from online news media such as Stand News and In-Media. The percentages surpassed 90% in late July and had remained at this high level since then. According to Table 17, from July 2019 to 8 December of the same year, 95% or more of the protesters surveyed had received information through online media. Thus, it can be seen that the information of Stand News reached nearly all protesters. Even though CUHK’s survey was discontinued after December 2019, there is no reason to believe that the behavior of the protesters had changed. According to CUHK’s survey, most of the protesters were aged 34 or below. I may take judicial notice and find that young people nowadays receive information through their mobile phones far more frequently than through other means of information dissemination. (The influential power of Stand News) 246.D2 testified that the Chinese University of Hong Kong conducted a survey on media credibility on 14-16, 19-23 and 26 August 2019. The survey classified news media organisations in Hong Kong into four groups: electronic media, paid newspapers, free newspapers and online news media. Stand News fell into the online news media group, which consisted of a total of 10 online media. Among the 10 online media, Stand News scored 6.69 points, ranking first in credibility and was ahead of In-Media, which ranked second, by 1.06 (6.69 - 5.63) points. The only reasonable and irresistible inference is that Stand News must have also been the most frequently accessed among the online media. Furthermore, when compared with all news media in Hong Kong, Stand News’ score in credibility ranked third, which was just slightly lower than Radio Television Hong Kong’s score of 6.72 and Now TV / Viu TV’s score of 6.76. The latter two were a radio station and a television station in the electronic media group. Thus, it can be seen that the information disseminated by Stand News must have been highly influential because most young people receive information through online media, and as Stand News was regarded as the most credible among the online media, young people would naturally receive the information coming from Stand News. 247.This is consistent with the number of social media followers of Stand News. D2 stated in his testimony that he was not sure but he had the impression that Stand News had approximately 200,000 odd to 300,000 Facebook followers as at June 2019, and that the number of followers on Facebook had continued to rise, with the only fall registered during the period between October and November 2020 when the US presidential election was underway, the reason being that some of the bloggers of Stand News had criticised Donald Trump in their articles at the time, causing some followers to feel dissatisfied and leave. D2 could not recall the exact number of people who had left but he recalled that there were approximately “several ten thousand” people. Nevertheless, D2 was sure that the number of followers exceeded one million at the time, although he was unable to say by how much. D2 also pointed out that although the number of followers grew much more slowly in 2021 than it did in 2020, there were 1.3 million likes and 1.6 million followers on Facebook when Stand News closed down. Notwithstanding that D2 had said under re-examination that followers might comprise “cyber-armies” targeting Stand News, there is no doubt that the number of followers of Stand News was at least close to 1.6 million. The most important part of the job of the media is to succeed in winning over readers or listeners who are willing to access their channels. Undoubtedly, from 2019 till its closure, Stand News had managed to do that and had an extremely large influence. (The dispute on whether society had returned to normal) 248.The defence asserted that the offence occurred during the period between 7 July 2020 and December 2021, and during this approximate one-and-a-half-year period, according to the official view, after the Hong Kong National Security Law had come into effect, social order in the HKSAR had returned to normal and the threat of terrorist attacks had remained at the same moderate level as before. The defence produced the editorial of Ta Kung Pao dated 8 October 2020[84], the press release of the speech of the then Secretary for Security John Lee dated 18 November 2020[85], Ta Kung Pao’s report dated 5 December 2020 on the speech of the Director of the Liaison Office of the Central People’s Government Luo Huining[86], Now News Channel’s report dated 27 January 2021 on the speech of President Xi Jinping given during Chief Executive Carrie Lam’s reporting of work to him via video conferencing[87], the press release of the speech of the then Secretary for Security Chris Tang dated 14 July 2021[88] and the Legislative Council Secretariat’s Public Preparedness for Terrorist Attacks released on 3 May 2018[89] as evidence in support of this point. D2 also testified that according to his observation, during this period of time, there was almost no street demonstration and the government had strong resources, skills and will, so there was no chance for terrorism to germinate in the community as alleged by the prosecution, and he did not observe this happening in the second half of 2020. 249.I have carefully read the above-mentioned journalistic materials (namely the news reports and editorials) and official press releases produced by the defence. In my view, although both the Central Authorities and the SAR Government had pointed out that by and large, social order in the HKSAR had been restored and society had returned to peace after the Hong Kong National Security Law had come into effect, they also pointed out that the restoration of order was only the first step, and that there was still much to be done in order to safeguard national security as well as the stability and prosperity of Hong Kong. They have never said that political or other unstable factors in society have been completely eliminated. For example, in the speech given on 4 December 2020, the National Constitution Day, Director Luo Huining mentioned that the Constitution and the Basic Law jointly form the constitutional basis of the HKSAR, and the Hong Kong community must fully recognise and respect the Constitution; however, it can be seen from a series of significant political and legal disputes that some people in Hong Kong only respect the original legal system remaining unchanged, but disregard the fundamental change in the constitutional basis of the HKSAR, which is the ideological source of some of the chaos in Hong Kong in recent years. Director Luo emphasised that the establishment of constitutional authority rests on the model of constitutional awareness and concepts of the whole community. The SAR Government and public officers should take the lead in launching in-depth promotion of and education on the Constitution, vigorously promote the spirit of the Constitution, conscientiously strengthen public awareness of the Constitution, and promote the full implementation of the Constitution in the HKSAR[90]. 250.Moreover, on 14 July 2021, in his reply to a question by the Hon Elizabeth Quat, a member of the Legislative Council, the then Secretary for Security Chris Tang also said[91]:
251.From the press release, it can be seen that the Hon Quat [raised the question] because an incident in which a man had stabbed and wounded a police officer on duty with a sharp knife and then killed himself had occurred on 1 July 2021 (namely the first anniversary of the implementation of the Hong Kong National Security Law). As the incident was shocking at the time, I may take judicial notice and find that this incident did occur. It seems the defence does not dispute this as before D2 produced the above-mentioned journalistic materials and official press releases, Ms Eu SC took D2 through part of the contents of MFI-4 prepared by the prosecution, including the said “1 July police stabbing incident”, and D2 did not dispute the occurrence of the incident. Similarly, D2 did not dispute that after the Hong Kong National Security Law had come into effect, someone had used petrol bombs to burn down a vehicle parked in the car park of a police clubhouse on 1 December 2020 (item 162 of MFI-4), the police had found upon search explosives and had arrested two men for conspiracy to manufacture bombs on 8 February 2021 (item 193 of MFI-4), and the police had arrested nine members of a group called “Returning Valiant”, including six students, for attempting to manufacture explosives on 6 July 2021 (item 236 of MFI-4). Thus, it can be seen that even one year after the implementation of the Hong Kong National Security Law, although large-scale demonstrations could no longer be seen in the territory, there were still quite a few people who opposed the implementation of the Hong Kong National Security Law in the HKSAR hidden in the community, and some of them even chose to use violence, including making use of explosives, to fight for their political demands or to express their dissatisfaction. There were also quite a few people in the community praising or glorifying people who used violence unlawfully. The incidents revisited by D2 during re-examination included the arrest of someone for inciting others to attack police officers on 2 and 4 July 2021 (items 234 and 235 of MFI-4). I may also take judicial notice and find that on 7 July 2021, the Hong Kong University Students’ Union Council called a meeting and passed a resolution expressing its appreciation for the perpetrator of the “1 July police stabbing incident”, and that the process of holding the meeting and passing the resolution was broadcast live to the public on social media (item 237 of MFI-4). These incidents show that in the HKSAR community where public order had seemingly been restored, there were still many people who were dissatisfied with the constitutional order and political environment of the HKSAR for reasons of their own. 252.The defence submitted that the risk of terrorist attacks in Hong Kong had remained unchanged, namely remained moderate all along, over the period of the alleged offence. However, it can be seen from Secretary Tang’s speech that the threat of terrorist attacks had remained moderate because according to the government’s assessment on the basis of threat levels classification, even though there was the possibility of an attack faced by Hong Kong, there was no specific intelligence indicating that it would become a target of attack[92]. In other words, the official assessment at the time was that there was no intelligence indicating that the HKSAR was about to be attacked, but the risk of an attack was always there. In particular, I believe it would be difficult for the police to get hold of intelligence before a lone wolf attack similar to the “1 July police stabbing incident” occurred. 253.In considering the journalistic materials and official press releases produced by the defence, it is not necessary for me to decide whether the incidents referred to by each of the speakers concerned had occurred or not, or whether their assessments were accurate or not. My emphasis is on the correct interpretation of the evidence. For the reasons already given, I do not accept that such evidence shows or suggests that HKSAR society had returned to peace or that it was impossible for terrorism to germinate or occur in Hong Kong. (Hong Kong people’s trust in the Central Government) 254.The defence also produced the findings of the surveys on Hong Kong people’s trust in the Central Government[93] conducted by the Public Opinion Programme at the University of Hong Kong. Such surveys have been conducted half-yearly since 1992, and what the defence produced was the findings of the surveys conducted between December 1992 and February 2023. The defence took the view that the surveys showed that Hong Kong people’s trust in the Central Government increased significantly over the period of the alleged offence, and had almost returned to the high level registered in 2007-2008 by the end of 2021, reflecting the fact that the “anti-China and anti-communist” sentiments as alleged by the prosecution were not prevalent in the community. D2 confirmed that the Olympic Games were held in Beijing in 2008. 255.The prosecution did not challenge the findings of the surveys produced by the defence. Accordingly, I accept that the data yielded by such surveys are true and accurate. However, in considering whether Hong Kong people trusted the Central Government or not, in my view, one has to consider all the survey data. The design of such surveys is quite simple. The evidence showed[94] that the pollsters only asked respondents one question: “On the whole, do you trust the Beijing Central Government?” The respondents’ responses were only divided into six categories: “trust very much”, “quite trust”, “half-half”, “quite distrust”, “distrust very much” and “don’t know / hard to say”. The pollsters would express the response in each category as a certain per cent of the total number of responses, then add up the percentage of the response of “trust very much” and that of “quite trust” to form the percentage of “trust”, as well as add up the percentage of the response of “quite distrust” and that of “distrust very much” to form the percentage of “distrust”, and then subtract the percentage of “distrust” from the percentage of “trust”, so as to arrive at the “net value” of trust. In other words, when the “net value” is a positive number, the number of Hong Kong people who trust the Central Government is greater than that of the number who distrust the Central Government, while the opposite is true when the “net value” of trust is a negative number. 256.The defence submitted that during the period of the alleged offence (namely 7 July 2020 to 29 December 2021), Hong Kong people’s trust in the Central Government had returned to the high level registered in 2007-2008, with the results of the two surveys conducted in June and December 2008 being, respectively, 54.9% and 53.1% for “trust”, 13.4% and 14.5% for “distrust”, and positive 41.4% and 38.6% for the “net value”. However, the defence assertion that people’s trust in the Central Government had almost returned to the high level registered in 2007-2008 by the end of 2021 is not supported by the data. Regarding Hong Kong people’s trust in the Central Government, I now set out the data obtained from the surveys in 2003, 2008 and March 2013 to February 2023 in the table below:
257.On basis of judicial notice and D2’s testimony, two major events occurred in the HKSAR in 2003: the outbreak of SARS, and the attempt of the SAR Government to enact laws in accordance with Article 23 of the Basic Law in July of that year, which, however, met with strong opposition from some political parties and quite a number of members of the public, and the bill was eventually withdrawn. Nevertheless, at that time, people who trusted the Central Government still outnumbered those who did not, with a positive net value of trust rising from 8.2% in June 2003 to 33% in December 2003; this was believed to be related to the Central Government’s approval of the Individual Visit Scheme for some mainland residents to travel to Hong Kong to boost the economy of the HKSAR. In the following years, some significant events also occurred in the HKSAR, for example the election-related “4.26” interpretation of the Basic Law by the National People’s Congress in 2004, but the net value of trust remained positive in that year and the few years that followed and peaked at 41.4% in June and 38.6% in December of 2008, the year of the Beijing Olympics. However, from 2012 onwards, the net value of Hong Kong people’s trust in the Central Government began to show a negative value, during which major incidents happened including the Scholarism anti-national education incident in 2012, the “8.31” decision on the method for the selection of the Chief Executive of the HKSAR by the National People’s Congress and the subsequent Occupy Movement (or Umbrella Movement) in 2014, riots in Mongkok during the Chinese New Year in 2016, and the interpretation of the Basic Law by the National People’s Congress in 2016, which resulted in several Legco members being disqualified from holding office as Legco members for failing to meet the oath-taking requirement, and so on. However, survey data also showed that from 2012 to September 2018 (namely the last survey prior to the proposed amendment to the Fugitive Offenders Ordinance), even though the net value of trust was negative, the greatest negative value was only about negative 15%, and for most of time the negative net value of trust remained in the single digits. 258.People’s trust in the Central Government changed drastically in 2019. The survey conducted between 28 February and 5 March 2019 showed that the net value of trust was a negative value of -15%. The major event which had occurred in the community at the time was the government’s proposed amendment to the Fugitive Offenders Ordinance to deal with a young man who had committed homicide in Taiwan, with the intent to send him back to Taiwan to face legal sanction; the young man had indicated that he was willing to go to Taiwan to bear responsibility for the offence he had committed. However, there were concerns that the Fugitive Offenders Ordinance would be used to extradite Hong Kong people to the Mainland to face trial after the amendment and, therefore, objections were raised. When the survey was conducted in March 2019, I believe the amendment bill had not even been formally tabled in the Legislative Council by the government but it had already caused great controversy in society. When the legislative process formally commenced in May to June, it immediately sparked large-scale and continued processions, assemblies, demonstrations, riots, etc. in the community. Even though the government announced in mid-June that the legislative amendment would be suspended and the amendment bill was withdrawn in September, protesters put forward other demands. The survey conducted between 15 and 20 August 2019 showed that the net value of people’s trust in the Central Government dropped to a negative value of -39.9%; and the survey conducted between 17 and 19 February 2020 showed that the negative net value of trust dropped further to -43%, meaning that no fewer than 4 out of 10 people did not trust the Central Government. 259.Under re-examination by Ms Eu SC, D2 stated that since the implementation of the Hong Kong National Security Law in the HKSAR on 30 June 2020, the findings of the surveys had shown that people’s trust in the Central Government had rebounded. According to the findings of the survey conducted between 17 and 20 August 2020, the net value of people’s trust was a negative value of -29.4%, which was higher than the -43% registered in the previous survey; and the following survey conducted between 24 and 26 February 2021 showed that the net value of people’s trust had climbed up to a negative value of only -2.0%. Despite the arrest of the candidates for the pro-democratic camp’s 35+ primary election before the survey was conducted, the significant increase in people’s trust in the Central Government was not compromised. Under re-examination by Ms Eu SC, D2 also confirmed that although the negative net value of trust shown in the next survey conducted between 20 and 26 August 2021 had rebounded, it had only rebounded to a negative value of -3.9%, representing an increase of less than 2%; and the net value of trust shown in the next survey conducted between 21 and 24 February 2022 went up to a positive value of 21.1%, which was no longer at the negative level, and the time of the alleged offence also ended shortly before this survey was conducted (namely 29 December 2021). The data presented by the defence showing the findings of the two subsequent surveys also showed that people’s trust in the Central Government was no longer at a negative net value. The net value of trust in July 2022 was positive at 20.8%, and that in February 2023 was positive at 25.9%. 260.The defence argued that such surveys yielded objective data which showed that at the material time in the present case, the social atmosphere was not very unstable as claimed by the prosecution and that the Central Government was not in a weak position. Therefore, even if there were traces of criticism in society, it would not result in arousing hatred for the Central Government, let alone causing unrest. 261.In my view, the defence is mistaken in its analysis of the survey data. The defence only relied on the “net value of trust” as the factual basis to support its submission, but the net value of trust is in fact reflective of the difference between the numbers of two categories of Hong Kong people, namely those who trusted the Central Government and those who did not, rather than the actual number of people in each category. Take the data collected in the survey conducted between 17 and 20 August 2020[95] as an example, in the then Hong Kong community, people’s trust in the Central Government in percentage terms was as follows: out of every 100 Hong Kong people, 20.1 “trust very much”, 8.1 “quite trust”, 8.5 “half-half”, 12.2 “quite distrust”, 45.4 “distrust very much” and 5.7 “don’t know how to say”. In other words, in August 2020, among every 100 Hong Kong people, only 28.2 trusted the Central Government while as many as 57.6 distrusted the Central Government, and the remaining 14.2 could not be classified into any category. 262.In my view, when nearly 60% of Hong Kong people distrusted the Central Government, regardless of what the reasons were, and regardless of whether the reasons were justified, they must have had negative views of the Central Government. With such a mentality, they were naturally prone to accept any negative information and criticism of the Central Government. Moreover, as most of them shared the same views, they would mutually reinforce their negative views of the Central Government, thinking that their own views were completely correct and this would be difficult to change. It is noteworthy that it is not the case that the said nearly 60% of people who distrusted the Central Government only came into being in August 2020 because both the surveys conducted in August 2019 and February 2020 showed that the percentage of Hong Kong people who distrusted the Central Government was as high as 62.7%. In other words, for the 57.6% of Hong Kong people who distrusted the Central Government in August 2020, most of them had been distrusting the Central Government for one year or more. D2 mentioned in his evidence that many of his fellow journalists emigrated in early 2020. I do not know and it is unnecessary for me to make a finding on whether the drop of about 5% in the number of people who distrusted the Central Government in August 2020 was related to the outflow of emigrants. But in any event, 57.6% is still a very large number. 263.The survey data produced by the defence also show two points. First, for people who were classified as being in “distrust” of the Central Government, most of them held an attitude of “distrust very much”. This is clearly shown in the table (only survey data from August 2019 onwards are set out) below:
264.Secondly, it can also be seen from the above tables that at the time of the alleged offence, i.e. from 7 July 2020 to 29 December 2021, the percentage of people who distrusted the Central Government had remained high over a long period of time: 57.6% in August 2020, 42.6% in February 2021, 41.7% in August 2021, and 30.8% in February 2022. Even in July 2022 and February 2023, the percentage of people who distrusted the Central Government remained at around 30% (29.9% and 27.6% respectively). The negative net trust value started to decrease in August 2020, and a positive value started to appear in February 2022. It can be seen from the figures that it was not because there was a significant decrease in the number of people who distrusted the Central Government, but that there was a significant increase in the number of people who trusted the Central Government. I believe the enactment of the HKNSL by the Central Government, which maintained the social order by restoring the general peacefulness of the HKSAR within a short period of time, was the reason why more people had chosen to trust the Central Government. Yet it is not necessary for me to make a finding on this issue. 265.As can be seen from the results of the opinion polls submitted as evidence by the defence, at the time of the alleged offence and before and after it, the percentage of Hong Kong people who distrusted the Central Government was 30%, 40%, 50% or 60% of the population. No matter what the percentage was, even if I assume that the population of Hong Kong was only 7 million during this period of time (the actual figure being much higher), the number of people who distrusted the Central Government ranged as much as over 2 million to over 4 million. These people certainly distrusted the SAR Government as well because they certainly regarded the SAR Government as an extension of the Central Government. 266.As a juror, by applying common sense and life experience, I am sure that the legitimacy and credibility of the government is an important factor for social cohesion and solidarity. If a large number of people distrust the government, it would naturally give rise to conflicts and escalate confrontations between the government and the people. This would automatically lead to social division. In addition, when people did not have trust in the government, they were more likely to harbour prejudices and negative assumptions. They might turn their distrust into suspicion and accusations against the government, interpreting normal or legitimate conduct of the government as suspicious or problematic, even when they lacked evidence, or solid evidence to support their accusations. In the absence of trust from people, it would be all too easy for the government to become a target of disinformation or rumour attacks. This is because people who distrust the government are more inclined to believe in the assumption that the government is guilty. 267.According to the above findings and data of the public opinion poll conducted by the University of Hong Kong, and the undisputed time of publication of the 17 articles in question, I find beyond reasonable doubt that when Stand News published articles A1 to A3, about 57.6% of the people of Hong Kong distrusted the Central Government; when it published articles A4 to A12, about 42.6% of the people of Hong Kong distrusted the Central Government; when it published articles A13 to A15, about 41.7% of the people of Hong Kong distrusted the Central Government; and when it published articles A16 and A17, about 30.8% of the people of Hong Kong distrusted the Central Government. Another background to bear in mind is that Stand News was regarded as the most credible online media used by almost all young people. G5.2 Considerations on articles A1 to A17 268.Based on the above findings on the context of the relevant time period in Part G5.1, I consider the 17 articles as follows: 269.Article A1 was a profile interview. The interviewee was Ho Kwai-lam who was a candidate in the 35+ Primary Election. In the interview, she advocated fighting against the Central Government and the SAR Government in different fields as follows:
270.At the time when this article was published, the 35+ democratic primary election was going to be held on two consecutive days on 11 and 12 July 2020, which was about one week after the implementation of the HKNSL on 30 June 2020. There were 12 candidates in the New Territories East constituency of the 35+ democratic primary election. Ho was one of them. She knew very well that she could promote her political ideology through her profile interview with Stand News. 271.In the article, Ho claimed herself to be of “the resistance camp”. When explaining what she meant by “resistance camp”, she said the Legislative Council was not a place for political discussion, but a front for resisting the Central Government. She would try every means to deal with the Central Government without seeking room for seesawing. When considering actions, she would not care about the price she had to pay, and she thought that she could afford it. From this, we can see that her attitude towards the Central Government was absolutely confrontational and there was no room for compromise. It shows her extreme hatred, disgust and contempt against the Central Authorities and the SAR Government, or her exciting disaffection against them. 272.Ho also said her strategy was “a breakup of the situation”, “breaking up the situation that the CPC has set for Hong Kong”. The reason she gave was: “If we follow the script of the CPC, Hong Kong will become Macau. However, this city has its own pursuit of freedom, making the CPC unable to wipe out the voice of opposition, and making the CPC unable to carry out their script.” Undoubtedly, by “situation” and “script”, she was referring to Hong Kong’s constitutional status and order after the handover in accordance with the Basic Law. Obviously, she did not accept “one country, two systems”, nor did she accept the legitimacy and authority of the Central Government and the HKSAR Government. 273.In Ho’s view, the Central Government would not allow voices pursuing freedom in Hong Kong, and would suppress any dissent. Therefore, she thought there were only two options: “The CPC hits with greater force, or Hong Kong becomes Macau”. By saying “Hong Kong becomes Macau”, what she meant was that like Macau people, Hong Kong people would lose their freedom. Obviously, she was trying to make use of people’s fear and emotional reaction towards the loss of freedom to make them believe and accept her advocacy. Undoubtedly, she was advocating and inciting the public to take a confrontational position with the Central Government. 274.Ho’s stated option of “the CPC hits with greater force” actually meant that she would take the initiative to provoke the Central Government, so that the Central Government would respond more strongly to the protesters. In her view, “hits with greater force can bring uncertainty to Hong Kong. When foreign interests in Hong Kong are undermined, they may intervene, they may condemn, they may even impose sanctions, bringing objective losses to China. Chinese officials may have their assets frozen, Chinese goods may be subject to additional tariffs, Chinese enterprises may be banned. China will have to deal with it. How to deal with it, it is not known. Yet ‘not known’ is better than ‘Hong Kong becomes Macau’.” Author Yeung Tin-shui stated that this was the “route of mutual destruction” in Hong Kong’s protests. 275.Ho also said, “Now we have only forced the CPC to ignite the fire, but we have not seen the ‘burn’ yet. If Hong Kong people just wait passively for the CPC to make a move, ‘mutual destruction’ will be suppression only, and it cannot achieve the effect of ‘if we burn, you burn with us’.” It can be seen from the context that Ho advocated “mutual destruction” in her speech. Regardless of the price that she had to pay, she only wanted to hurt the Central Government and the SAR Government in order to achieve her political demands. 276.As shown by the undisputed evidence, before this article was published, Ho had already signed the “Inked Without Regret”[96] on 10 June 2020, stating that she would use the vetoing of the budget as a means to force the Chief Executive to respond to the demands and so on. Ho proposed, “Therefore, Hong Kong people’s protest must continue, it cannot stop.” There is no doubt that she was inciting others to attempt to procure the alteration, otherwise than by lawful means, of any matter in Hong Kong as by law established, and to raise discontent or disaffection amongst the inhabitants of Hong Kong. 277.The article also said that a colleague of Stand News had once asked Ho whether she had thought about her future. Ho said, “No. Many protesters in this movement felt the same way, hey, what is the future? It cannot be seen at all. I know some persons, in the secondary school which he attended, not to mention riots, even for those who were not arrested, there were people who were beaten up by the police and threatened with rape, all sorts of things, and he was just a Form 2 student. How can a person grow up in such an environment? How can one imagine that Hong Kong has a future?” Ho described Hong Kong as a place where young people had no room for survival or growth. 278.The article ended with the following words from Ho: “I have a good friend who said something which left a deep impression on me: Revolution is a quest for life, not for death. To resist is to seek survival. Those who think mutual destruction is pessimistic are just unaware of how bad Hong Kong has become. The pro-establishment camp said Hong Kong will become peaceful after the enactment of the HKNSL, but if that peacefulness is built on the prosecution of 600-odd people for riot, that is not peacefulness, is it ... Whether mutual destruction is pessimistic or optimistic depends on whether the Hong Kong you see is the real Hong Kong.” Ho tried her utmost to persuade readers who did not agree with or who had not yet agreed to the “mutual destruction” tactic. She created fear by saying that they had not yet realised they were only living under totalitarianism, making them believe that Hong Kong was a place where there was no freedom at all, and where they could not live a normal life. She tried to persuade the readers to believe that their only way out was to resist the Central and the SAR Government and to engage in “mutual destruction” so that they could have a chance to survive. 279.At the time of the offence, there was social unrest and the political climate was extremely heated. The HKNSL had just been promulgated and implemented. A large number of the public were discontented with or were even against the SAR Government and the Central Government. Having considered all the circumstances, [I am of the view that] article A1 would give rise to strong feelings of enmity towards the Central Authorities and the SAR Government, denying their legitimacy and authority, and inciting readers to participate in or assist in the “mutual destruction” of the Special Administrative Region. I find that the content of article A1 caused potential detriment to national security or public order and safety, and had the intention of seriously undermining the authority of the Central Authorities or the SAR Government and the constitutional order of Hong Kong. Therefore, it had the seditious intentions as defined in section 9(1)(a) and (b) of the Crimes Ordinance, i.e. to bring into hatred against the Central Authorities or the Hong Kong Government, and to excite inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any matter as by law established. 280.Article A2 was a profile interview. The interviewee was Chow Ka-shing who was a candidate in the 35+ primary election. In the interview, he mentioned Hong Kong nationalism and expressed his distrust of “one country, two systems” and the Basic Law, etc. After reading it carefully, I find that although article A2 involved Chow’s presentation of his political views, its main purpose was to criticise other democrats as follows:
281.Article A2 also talked about the background of Chow, including his self-positioning as a localist. Moreover, it can be seen that Chow was a newcomer who lacked a political background. He was not particularly popular among different camps, and he was not supported by any political party. Chow emphasised that his election strategy must include a radical idea, and therefore he had to promote Hong Kong nationalism, saying there was no time to waste. At the same time, he also accused the pan-democrats of not daring to point out the truth, and that their performance in the Legislative Council was “obvious to all”. 282.The article recorded that when the reporter had asked Chow about his political advocacy and how he had come up with his ideology, Chow had mentioned the concepts of “Hong Kong National Party” and “Hong Kong Commonwealth”, etc. The article also recorded his clashes with the District Councillor of the Democratic Party. Finally, the article recorded Chow’s political objectives. In his view, the Central Government had already “torn the veil” and Hong Kong had entered a revolutionary stage. Therefore, in his opinion, he only needed to continue to promote localism. 283.In my view, although article A2 mentioned Chow’s own discontent with the Central or the HKSAR Government, it spoke at greater length about his discontent with the pan-democratic camp or the democratic camp. Having considered all the circumstances, I am of the view that there is insufficient evidence to prove that article A2 had seditious intentions. 284.Article A3 was a profile interview. The interviewee was Leung Fong-wai Fergus who was a candidate in the 35+ primary election. In the interview, he criticised the CPC and the SAR Government for their totalitarianism, and pointed out that the HKNSL was a tool for suppression. 285.The article began with a brief account of Leung’s experience in running for the District Council election and his subsequent disqualification, using this as an opportunity to describe his emotional journey in the campaign. 286.Leung was asked by the reporter what he thought of 35+. He said the purpose was to make the Central Authorities “crazy”, and to make Hong Kong people lose their illusion about elections. He said he stood in the election because he wanted to gain the attention of the Hong Kong people, and to challenge the regime by tearing down the illusion it had created.
287.When asked by the reporter, Leung expressed his love for Hong Kong many times. He also emphasised that he would not rashly emigrate, and he knew that he loved Hong Kong’s Victoria Harbour waterfront very much. 288.The article recounted Leung’s personal experience in the social movement and his thoughts on it, the origins of his political ideology and his views on the situation of the District Council and his work. He indicated that he had worked closely with members of other political parties, and had a good relationship with the Democratic Party and other traditional pan-democrats. He also thought that many District Councillors were not very “local”, but in fact they supported in practice the concept of localism. However, he thought the approach to work by the conservative camp in the District Council remained on individual performance. In his view, the District Council should be a comprehensive platform for protest, and it should not only talk about livelihood matters. 289.The article also recorded that Leung believed his being elected as a District Councillor had “actually nothing to do with him”. He was just fortunate enough to win because of “the two battles in the universities, which had raised the anti-police and anti-government sentiments in the community to the highest level”. 290.Article A3 involved Leung’s presentation of his political views. However, having considered all the circumstances, I am of the view that its main purpose was to explain Leung’s journey to political participation. When article A3 was published, the government had already announced the postponement of the 2020 Legislative Council election, and the interviewee had been disqualified from running in the Legislative Council election. Running in the Legislative Council election was impossible. Although article A3 involved Leung’s presentation of his political views, it does not contain any particular words to vilify or denigrate any particular side. Having considered all the circumstances, I am of the view that its main purpose was to explain Leung’s journey to political participation, and there is insufficient evidence to prove that article A3 had seditious intentions. 291.Article A4 was a blog post written by Chan Pui-man. The article began by asking readers the following question:
292.After asking the question, the article listed three instances of law enforcement by the police. The first one concerned the aforementioned Tam Tak Chi case in which the defendant was charged with dissemination of seditious words. The second and third cases were respectively about a girl who had been arrested for violating the anti-epidemic measures in relation to social gathering restrictions, and a bus driver who had been charged with careless driving at the scene of a procession. In the second and third cases, the articles described law enforcement by the police in a negative way. Then the articles attacked the SAR Government with regard to the Tam Tak Chi case with radical and sensational words as follows:
293.In my view, the main objective of article A4 was to attack the law enforcement and prosecution of Tam Tak Chi case, making use of the other two cases to adversely describe the law enforcement of the police to enhance the impact of the attack. 294.Tam Tak Chi, the girl and the bus driver were all arrested on 6 September 2020. Tam Tak Chi set up a street booth on the day of the grand procession in Kowloon and disseminated seditious words. The 12-year-old girl was rounded up by the police at Sai Yeung Choi Street in Mong Kok. The Citybus driver was arrested for the offence of dangerous driving, etc. when driving along Nathan Road during the Kowloon grand procession because of his driving manner, involving the sounding of the horn for no reason. 295.The author compared these three cases and then asked which case would bring into hatred and contempt against the HKSAR Government. Obviously, the author was making use of the compassion and sympathy general people had for the girl. However, Tam Tak Chi’s case was different from the other two cases. The author did not make it clear that Tam Tak Chi was involved in the dissemination of seditious speech on the street on a number of occasions, and he had been arrested and released on bail on two occasions. But he continued to break the law, leading to his third arrest, and only then was he formally charged. His case was brought up for mention on 8 September when he was refused bail. This was reported by Stand News[97]. The author also failed to tell the readers that Tam Tak Chi had conducted an unauthorised assembly by setting up a street booth. These allegations were reported in the news, including Stand News[98]. Given the author’s occupation as a deputy director of the newspaper, it is inferred that she must have known about this. 296.The author’s comparison of the cases with the girl and the bus driver was definitely inappropriate. Their cases involved a single complaint against the law enforcement of the police. Tam Tak Chi had attacked the legality and legitimacy of the regime and the Government. Even if the police had made mistakes in the law enforcement procedures of the girl and the bus driver, it would not legitimise Tam’s conduct. The author was clearly using incomparable examples to incite public hatred towards the Government. 297.On the other hand, in so comparing, the author undoubtedly indicated, explicitly or implicitly, that she supported the actions of Tam Tak Chi, and that there was no problem with Tam Tak Chi’s actions, that they did not constitute any offence, that the arrest of Tam Tak Chi constituted illegitimate suppression, bringing the public into hatred against the Government and the law enforcement agency. 298.The author even said, “The regime warns the Hong Kong people by pursuing Fast Beat. The red line keeps tightening and the goal post keeps moving, so whoever is superior and whoever is fierce will be able to call a stag a horse.” The allegation of not acting in accordance with the law was obviously vilifying the Government, the law enforcement agency and the court. In the judgment of Tam Tak Chi’s case, it can be seen that the police law enforcement and prosecution were legitimate and lawful. I also agree with the judgment of the trial judge that police are part of the “administration of justice” under section 9(1)(c) of the Crimes Ordinance[99]. The wordings of the article were radical and sensational without any objective basis, completely dismissing the need for law enforcement by the police. Moreover, the other two cases should not have been used as a reason to attack the law enforcement in the Tam Tak Chi case. The two cases were cited just to incite the readers’ antagonistic feelings against the Government. Section 9(2) of the Crimes Ordinance does not apply. 299.At the time of the offence, there was social unrest and the political climate was extremely heated. A large number of the public were discontented with or were even against the SAR Government and the Central Government. Having considered all the circumstances, I find that the content of article A4 caused potential detriment to national security or public order and safety, and had the intention of seriously undermining the authority of the Central Authorities or the SAR Government, and the administration of justice in Hong Kong. Therefore, it had the seditious intentions as defined in section 9(1)(a) and (c) of the Crimes Ordinance, i.e. to bring into hatred against the Central Authorities or the Hong Kong Government, and to bring into hatred against the administration of justice. 300.Article A5 was a blog post written by Law Kwun-chung. At the time when A5 was published, he was a fugitive who advocated the independence of Hong Kong and had absconded overseas. At the beginning of the article, he vilified the HKNSL as a tool to suppress freedom of thought and speech, completely ignoring the fact that spreading ideas of Hong Kong independence in schools undermined the constitutional status of the Hong Kong Special Administrative Region after the reunification. The article attacked the HKNSL for suppressing freedom of thought and speech:
301.The example given by Law Kwun-chung confounded right and wrong. The HKNSL has plugged the loopholes in the previous law, so teachers can fearlessly teach students who have gone astray without being afraid of those who have abused and weaponised the freedom of speech. However, Law described teachers as being in league with those in power. Law even spread the fear that under the HKNSL, there were to be more individuals who would monitor one another, destroying the trust among people and the relationship in civil society. He vilified the government for using the HKNSL to break the connections between people:
302.The article then pointed out how Hong Kong people should resist the governance under the HKNSL:
303.In my opinion, article A5’s description of the implementation of the HKNSL has no objective basis at all, and is tantamount to creating fear as a form of attack. The article even instructed the readers to use “non-political” organisations to liaise, hide and spread in a low-profile manner. Obviously, the aim was to incite Hong Kong people to get ready to act again at any time, to weaken the governance of the Central Authorities and to widen the front against them. Section 9(2) of the Crimes Ordinance clearly does not apply. In the light of the social unrest and unstable public sentiment at the time of the offence, I find the content of article A5 caused potential detriment to national security or public order and safety, and had the intention of seriously undermining the authority of the Central Authorities or the SAR Government, and the administration of justice in Hong Kong. Therefore, it had the seditious intentions as defined in section 9(1)(a) and (c) of the Crimes Ordinance, i.e. to bring into hatred against the Central Authorities or the Hong Kong Government, and to bring into hatred against the administration of justice. 304.Article A6 was a profile interview, and the main interviewee was Law Kwun-chung. Law mentioned in the interview that he advocated for foreign countries to sanction Chinese and Hong Kong officials, and sniped at the Chinese Foreign Minister who was visiting Europe, and so on. At the time of the interview, Law had already left Hong Kong and was in the UK. Having read the article carefully, I consider that although article A6 involves Law’s expression of his political views, the focus of the article is on his life in the UK, as follows:
305.At the beginning of the article, it mentioned an interviewee under the pseudonym, Doris. Doris had participated in some support positions in the anti-ELAB movement, and later chose to bring her mother and son to live in the UK after the HKNSL came into effect. However, the act of leaving Hong Kong for the UK made her feel guilty, and this feeling of guilt drove her to insist on participating in the rallies even when she was abroad, which brought out that Law also shared the same feeling of guilt. 306.The article mentioned Law’s busy life in the UK, as well as his rushing to Italy and Germany to petition, sniping at Wang Yi, Chinese Foreign Minister during his foreign visits, so that Luigi Di Maio, Italian Foreign Minister would mention the situation of Hong Kong to Wang. 307.Law also mentioned that he was wanted for “being allegedly involved in incitement to secession” a month after he had left Hong Kong, but said the warrant “proved why he had to leave” and that he chose to face his country with action.
308.The article mentioned some of Law’s thoughts on the HKNSL; for example, he thought that the HKNSL was obviously meant to target international advocacy work and impose particularly severe penalties. The article also mentioned that out of fear for his personal safety which might be threatened, Law had been living with caution overseas. 309.According to the article, Law was worried when he learnt that “Agnes Chow Ting was arrested for allegedly violating the National Security Law and Joshua Wong Chi-fung was charged for unlawful assembly”, but due to the HKNSL, he also avoided contacting them. However, this also aggravated Law’s sense of guilt, “making me feel that I have to do a lot of work before I can to some extent put my mind a bit at ease.” 310.Having considered article A6 as a whole which focuses on Law’s post-exile experience and psychological journey, I am of the view that the evidence is insufficient to prove that article A6 has seditious intentions. 311.Article A7 was a blog post written by Law Kwun-chung. The article described the society as being in a dark valley after the implementation of the HKNSL:
312.Using different examples, the article emphasised that the social movements that took place in Hong Kong were actions to regain freedom from the regime:
313.Referring to the social movements that Hong Kong had experienced over the years, the author reminded readers that social movements inevitably involved differences in power and that those who resisted would inevitably bear a great price. He emphasised that social movements were caused by the excessive power of those in power and the intolerable exploitation of the powerless, which led to the desperate resistance of the people. In his article, the author incited the sensation of martyrdom in his readers, stressing that bearing the price was part of the nature of social movements, and encouraged them to challenge the governance of the government and the Central Authorities regardless of the consequences:
314.The article also referred to the suppressions and various kinds of unjustifiable injuries the protesters were subjected to:
315.The article used a football match as an analogy for social movements, encouraging readers to note that the day was not yet over and the winner was not yet known, pointing out that the democratic movement had entered a full-scale protracted mode from 2019 onwards, and emphasising that protesters only needed to persevere to make ongoing changes. 316.In my opinion, article A7 refers to the unjustified suppression, disappearance, assault and prolonged imprisonment of the protesters without mentioning any objective basis, with the aim of spreading hatred and anti-government sentiments by means of disinformation and boosting the morale of the protesters in Hong Kong to demand for full-scale and protracted protests. The whole article is to teach readers how to maintain the will to fight against the Central Authorities and the SAR Government, and to incite readers to take the actions he suggests. Section 9(2) of the Crimes Ordinance does not apply. In the light of the social unrest and unstable public sentiment at the time of the incident, I find that the content of article A7 caused potential detriment to national security or public order and safety, and had the intention to seriously undermine the authority of the Central Authorities or the SAR Government, and therefore had the seditious intention as defined in section 9(1)(a) of the Crimes Ordinance, i.e. to bring into hatred against the Central Authorities or the Hong Kong Government. 317.Article A8 was an interview with Hui Chi-fung, in which he mentioned declaring war on the Hong Kong government and fighting for foreign sanctions against Hong Kong. At the time of the interview, Hui had already left Hong Kong and was in Denmark. 318.The article mentioned that Hui had been allowed to leave Hong Kong on the grounds of an official duty visit while on bail. Hui later announced his exile and resignation from the Democratic Party on social media, and brought his family with him so that he could “fight” with the Hong Kong government in a high profile manner. Hui stressed that the sudden overseas exile was not part of his plan, and that he had learnt of the change in his itinerary only after he had arrived in Denmark. It was only after he had received his family in Denmark that his escape plan was formalised. The article also mentioned the criticism made against his action, without naming him, by the Chief Executive Mrs Carrie Lam. 319.The article reported that many political figures who had left Hong Kong had announced that they had disowned their families; however, Hui said through the reporter that he would not be cut off from Hong Kong nor his family. He also said he hoped to make a living overseas by working on international fronts, outlining some of his action plans, including how he would divide his work with other fugitives. 320.After a careful reading, I am of the view that although article A8 involves the expression by Hui of his political views, it focuses on the process of his departure from Hong Kong and his subsequent movements. Considering it as a whole, I find that the evidence is not sufficient to prove that article A8 has seditious intentions. 321.Article A9 was a profile interview with Leung Chung-hang Sixtus, in which he questioned the Hong Kong judicial system, mentioned the idea of seeking foreign sanctions against Hong Kong, and the idea that only two countries can have two systems. At the time of the interview, Leung had already left Hong Kong and was in the United States. 322.This was a video interview after Leung had announced his exile in the United States. Through the reporter, Leung said that he had settled down in the US, but he was not in a good mood and was experiencing “guilt-like feelings”:
323.Leung said that he had been followed after his release from prison for the storming of the Legislative Council Complex in September and felt that he was on the radar of the regime. He also expressed his distrust of the judicial system and believed that he would be put on the wanted list. 324.The article reported Leung talking about his work on the international front. He hoped to fight for sanctions on the financial system when the Democratic and Republican parties in the US had reach a consensus to support Hong Kong; he also hoped to fight for a lifeboat programme for those born after 1997 and who did not have a BNO; and he supported the plan of the former British Consulate staff member, Simon Cheng Man Kit, who was living in exile in the UK, to set up a “Shadow Parliament” in the UK. 325.Through the reporter, Leung claimed that his political beliefs had not changed. He questioned the constitutional status of Hong Kong set by the Central Government, saying that only when having two countries can there be two systems. He also expressed the view that that he did not believe any place under the CPC could have a democratic system. Leung even directly said that the CPC was not an honest player, which reflected that Leung was strongly against “one country, two systems” and the Central Government. However, he did not go further to encourage others to follow his idea:
326.The article also reported that Leung had been accused of being an undercover mole a number of times. Leung stressed that he would not query others, and that as long as Hong Kong people were united, there was no need to distinguish between the localist camp, self-determination groups or the pan-democratic camp. 327.Upon close scrutiny, I am of the view that although article A9 involves the expression of Leung’s political views, it does not go further to encourage others to act. I find that the evidence, taken as a whole, is not sufficient to prove that article A9 had seditious intentions. 328.A10 was a blog post written by Cheung Kwan-yang. The article described the CPC as the axis of evil, accused the Central Government of using material power to coerce people who pursue justice, and also accused the Central Government of being full of lies and inflicting harm on Hong Kong’s autonomy, in an attempt to bring readers into hatred against the Central Government:
329.In the face of the suppressions by the Hong Kong Government and the Central Government, Cheung interpreted that as the Central Government being “in fact strong on the outside but weak on the inside, and is of the mentality of an anxious dog jumping over the wall”, so as to motivate the protesters into believing that the past actions had exerted great influence on the Central Government, in an attempt to belittle the authority of the Hong Kong Government and the Central Government in their governance:
330.The article went on to encourage Hong Kong people to put up resistance as follows:
331.At the time of the incident, there was social unrest and public sentiment was unstable. Considering the case as a whole, I find that article A10, without providing any objective basis, abused the Central Authorities or the HKSAR Government, and the content of the article caused potential detriment to national security or public order and safety, with the intention of seriously undermining the authority of the Central Authorities or the SAR Government, and had the seditious intention as defined in section 9(1)(a) of the Crimes Ordinance, i.e. bringing into hatred against the Central Authorities or the Hong Kong Government. Section 9(2) of the Crimes Ordinance does not apply. 332.A11 was a blog post written by Allan Au Ka-lun. The article reviewed the year 2020 as follows:
333.Au claimed that “one country, two systems” had already ended in 2020. At that time, officials of the Central Government and the Establishment had said that the promulgation of the HKNSL would be a “second reunification”, but what they meant was that the Central People’s Republic of China would really exercise sovereignty over Hong Kong again. Undoubtedly, during the anti-ELAB movement, the atmosphere of Hong Kong’s independence was prevalent, and many people sought foreign assistance. The promulgation of the HKNSL was to ensure that China’s sovereignty would not be infringed upon. The fact that Hong Kong is an inseparable part of the People’s Republic of China has long been stipulated in the Basic Law. The so-called second reunification is only a reiteration of China’s sovereignty, and neither the HKNSL nor any provision has mentioned that the two systems under the Basic Law would be affected. Au’s statement that year 2020 saw “one country, two systems” as a confirmed case of serious illness was a smear campaign against the Central Government, the SAR Government and the HKNSL. 334.In using the phrase “a broken promise”, Au obviously meant that the promise of full direct election of the Chief Executive and the Legislative Council had not materialised. However, the Basic Law only promises a high degree of autonomy to the people of Hong Kong, and full direct election will of course depend on the local situation. When many people in Hong Kong demand that the Central Authorities should not be involved in Hong Kong’s affairs at all, this is tantamount to independence, which cannot be allowed. In writing such an article, Au was only stirring up and echoing the sentiments of those who were still pursuing the independence of Hong Kong. The explanations given by Au for each new term he used were in fact just his own political expressions. 335.He claimed that the legal weapon of “National Security” has come out of nowhere to demonstrate the era of “let there be law and there is law”. However, it is an indisputable fact that before the enactment of the HKNSL, there was no law in Hong Kong to protect national security. Moreover, the protection of national security is of course a matter for the State, which can authorise the SAR to enact laws on its own, or the State can do so itself. The political issues arising from the 2019 anti-ELAB movement had to be resolved immediately, and the enactment of legislation on national security had to be done without delay. It was impossible for Au to be unaware that the Legislative Council of Hong Kong could not operate at all during the anti-ELAB movement, as it took half a year for pan-democratic members to elect the Chairman of the House Committee. Moreover, Au never pointed out which provisions in the HKNSL are provisions not found in other countries. 336.In my opinion, A11 describes the constitutional system, the Central Government and the governance of the HKSAR Government in an extremely negative light (e.g. “‘one country, two systems’ was a confirmed case of seriously illness, on intubation about to die”, “a miracle crumbling”, “the governance of a plague”, “Under the tyrannical government, HK has seen the first generation of political prisoners”, “the tyrannical government was more ferocious than the Wuhan Conronavirus Disease”). It also smears Chinese diplomats with the imagery of “ferociously vile face”. The article went on to attack the HKNSL and even the judicial system without providing any objective basis. Section 9(2) of the Crimes Ordinance does not apply. In the light of the social unrest and unstable public sentiment at the time of the incident, I find that article A11 caused potential detriment to national security or public order and safety, with the intention of seriously undermining the authority of the Central Authorities or the SAR Government, the constitutional order of Hong Kong, and the administration of justice in Hong Kong, and had the seditious intentions as defined in section 9(1)(a), (b), and (c) of the Crimes Ordinance, i.e. to bring into hatred against the Central Authorities or the Hong Kong Government, to excite inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any other matter as by law established, and to bring into hatred against the administration of justice. 337.A12 was a blog post written by Allan Au Ka-lun. The article firstly criticised the scope of application of the HKNSL to be too wide:
338.The article went on to criticise the system of appointed judges, questioning whether judges could handle cases independently and impartially:
339.Au criticised the HKNSL not only in A12, but also in other articles, which included A14, including the designation of judges, the provision on bail, and trials without jury. Au was not a lawyer; of course he could seek legal advice, and he could even do research, but he never pointed out which provisions in the HKNSL were different from those in other countries (including common law countries) and/or which provisions these countries think should not exist. 340.In any event, Au could have made reference to the precedents of the Hong Kong courts. A12 was released in late December 2021 and he had seven months to study the precedents of the Hong Kong courts. 341.The Court of First Instance gave judgment on as early as 21 August 2020, in the case of Tong Ying Kit [2020] HKCFI 2133, making it clear that the HKNSL did not involve a presumption of guilt in the consideration of a defendant’s application for bail. Furthermore, under section 44 of the HKNSL, the Chief Executive can assign judges of different ranks to be the designated judges for cases involving the HKNSL, which does not interfere with or affect the independence of the Hong Kong judiciary, “since the Judiciary has full power to deal with and decide on any case that a judge handles”. There is also a Special Criminal Court in Ireland that deals with specific cases. “Section 39(2) of The Offences against the State Act 1939 provides that ‘each member of a Special Criminal Court shall be appointed, and be removable at will, by the Government’”. 342.The Court of First Instance also dealt with the issue of the bail threshold under the HKNSL in the abovementioned case, Tong Ying Kit. Having made reference to the case law of common law jurisdictions, the Court of First Instance held that even if the law provides that no bail shall be granted unless the court is satisfied that the defendant will not commit any further offence against national security, it is not unconstitutional since the judge still has the discretionary power to grant the defendant bail. Prior to the publication of A12, Au could not have been unaware that on 23 December 2020, Alex Lee J, a designated judge under the HKNSL, had granted bail to Lai Chee-ying; as evidenced by Au’s article, he was very concerned about Lai: [2020] HKCFI 3161 (Date of Judgement: 29 December 2020). In the UK, under section 25 of the Criminal Justice and Public Order Act 1994, bail may only be granted in exceptional circumstances. The European Court of Human Rights held that the relevant provision did not deprive the defendant of his rights: Kevin O'Dowd v The United Kingdom, Application no. 7390/07 (21/09/2010). 343.In HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 (English original) & 73 (Chinese translation) (Date of Judgment: 1 February 2021), the Court of Final Appeal clearly explained the rationale for and the process of NPC’s enactment of the legislation (Part B, paragraphs 9-22). It explained the need to protect human rights, etc. (paragraph 22). It explained “the convergence, compatibility and complementarity” between the national security law and local law (paragraph 29). It explained the possible consideration of imposing conditions of bail within the meaning of the Criminal Procedure Ordinance in order to determine whether the defendant would not commit any national security offence if bail was granted (paras. 55-63). It explained that there was no so-called onus of proof in a bail application even under the common law (i.e. even in the absence of any influence from the HKNSL) (paras. 64-69). It explained that some foreign countries also placed the burden of proof for obtaining bail on the defendant rather than on the prosecution but that was not unconstitutional (paragraph 69). 344.In respect of the statutory provision for trial without a jury, in Northern Ireland, under the Justice and Security (Northern Ireland) Act 2007, the Director of Public Prosecutions may designate specific offences for trial without a jury, as is the case in Hong Kong. In the UK, under section 44 of the Criminal Justice Act 2003, the prosecution may apply to the court for a trial without a jury. In Twomwy & Cameron v the United Kingdom, Application nos. 67318/09 and 22226/12, the European Court of Human Rights ruled that the absence of a jury did not violate human rights law. 345.Insofar as the provisions of the HKNSL contain “etc.” and “other”, had Au researched or sought legal advice, he would have understood that the provisions must be interpreted in accordance with the principles of statutory interpretation in order to determine their meaning, which left no room for the law enforcement agencies to abuse their power. 346.In the entire complaint in A12 against the HKNSL, apart from allegations, there was no substantive justification; the least he could do was to point out whether there were any unusual provisions in the HKNSL as compared with the laws of other countries; he did not even do that. I find that he was unable to do so at all. 347.In A12, Au complained that the Department of Justice was not soft in hunting down and pursuing political opponents, and that he could review the sentence, appeal again and again. However, all these procedures are originally part of the laws of Hong Kong, and are not provisions under the HKNSL. 348.Au complained that the NPCSC could guard the tailgate of the legal proceedings. The function of the NPCSC is comparable to that of the British Parliament, and it certainly has the power to interpret the law in accordance with the Basic Law. The British Parliament can overturn court judgments by way of legislation. 349.In A12, Au even alleged that since the NPCSC could make clarification or interpretation of the law at any time, those judges who were aware of the current situation would understand the meaning of justice in the new era. This is an unadulterated act of contempt of court. All judges are to follow the Judicial Oath in discharging their duties. Article 5 of the HKNSL provides that a judge shall not convict or sentence any person for any offence not provided for by law. 350.I am of the view that, without any objective basis, A12 alleged that the HKNSL had extended the Government’s power such that it no longer had any boundary, that the HKNSL was being exploited by the Department of Justice to suppress political opponents, and that judges are not handling, or would not be able to handle, cases in an independent and impartial manner. Section 9(2) of the Crimes Ordinance does not apply. The article also ignores the need for the promulgation and implementation of the HKNSL (see the 5.28 Decision[100]), and the fact that similar laws and related systems exist in Western democracies (e.g. in Northern Ireland, national security cases can be tried without a jury[101]). 351.In the light of the social unrest and unstable public sentiment at the time of the incident, I find that A12 caused potential detriment to national security or public order and safety, with the intention of seriously undermining the authority of the Central Authorities or the SAR Government and the administration of justice in Hong Kong. It had the seditious intentions as defined in section 9(1)(a) and (c) of the Crimes Ordinance, i.e. bringing into hatred against the Central Authorities or the Hong Kong Government and bringing into hatred against the administration of justice. 352.Article A13 was a blog article written by Law Kwun-chung, which criticised the trial arrangements in respect of the 35+ primary election case involving 47 defendants:
353.The article went on to describe the prosecution of the 35+ primary election as ridiculous and an abuse of power:
354.From the judgment of the 35+ primary election case[102], one can see that the enforcement actions and prosecution in that case were reasonable and legitimate. I am of the view that article A13 criticised the prosecution brought by the Department of Justice as being ridiculous and an abuse of power without any objective basis. It was in flagrant disregard for the need to enforce the law. Thus, section 9(2) of the Crimes Ordinance does not apply. The article also omitted the fact that since the 35+ primary election case involved a large number of defendants, the court had to extend the sitting hours in order to deal with them as expeditious as possible. In fact, neither the prosecution nor the defence made any application in relation to the court sitting time. 355.In the light of the social unrest and unstable public sentiment at the time of the incident, I find that A13 caused potential detriment to national security or to the public order and safety, with intention to seriously undermine the authority of the Central Authorities or the SAR Government as well as the administration of justice in Hong Kong. It had the seditious intentions as stipulated in section 9(1)(a) and (c) of the Crimes Ordinance, namely bringing into hatred against the Central Authorities or the Hong Kong Government, and hatred against the administration of justice. 356.Article A14 was a blog article written by Allan Au Ka-lun. His article repeatedly criticised the HKNSL and also the provisions on sedition in the Crimes Ordinance:
357.In A14, Au first gave his interpretation of freedom of speech. He then proceeded to criticise the legislation and judgments in respect of the offence of sedition based on his own definition of freedom of speech. 358.In my opinion, A14 failed to provide any objective basis to support its attack on the relevant provisions of the HKNSL and the Crimes Ordinance, which were alleged to be the legal weapons misused by the regime to suppress freedom of speech. Thus, section 9(2) of the Crimes Ordinance does not apply. The article also alleged that judges were tested, trained and without autonomy. It seriously undermined the legitimacy of the administration of justice in Hong Kong. In the light of the social unrest and unstable public sentiment at the time of the incident, I find that A14 caused potential detriment to national security or public order and safety, with intention to seriously undermine the authority of the Central Authorities or the SAR Government and the administration of justice in Hong Kong. It had the seditious intentions as stipulated in section 9(1)(a) and (c) of the Crimes Ordinance, namely bringing into hatred against the Central Government or the Hong Kong Government, and hatred against the administration of justice. 359.Article A15 was a blog article written by Allan Au Ka-lun. The article criticised the enforcement actions and prosecution against the five senior staff members of Apple Daily under the HKNSL:
360.According to a report by Stand News on 19 June 2021[103] , Chan Pui-man was arrested for the offence of “conspiracy to collusion with a foreign country or with external elements to endanger national security” on 17 June and was subsequently released on bail. In other words, Chan was not held in detention at the time when article A15 was published. 361.One can see that in article A15, Au completely disregarded the fact that Chan Pui-man along with other senior staff members of Apple Daily were arrested not because of their capacity as journalists. They were arrested because they were suspected of having committed the offence of endangering national security and colluding with a foreign country or with external elements. As far as Au was concerned, there was no way for him to know what evidence the prosecution had, nor was he in a position to know what an individual member of the senior management of Apple Daily had done. However, it was a well-known fact that Lai Chee-ying, Jimmy, the founder of Apple Daily, had maintained contacts with foreign dignitaries. Whether these contacts constituted an offence is of course not necessary for me to decide. Nevertheless, it was impossible for Au to aver that the arrests made by the police were totally groundless. In his article, Au only described Chan and other Apple Daily staff members as reporters who stayed at the “scene of the disaster”, a metaphor which was devoid of any factual basis. Its sole purpose was to discredit the enforcement actions. The various disasters under the HKNSL alleged by Au was entirely unfounded. He had been saying that under the HKNSL, people were imprisoned before their trials had commenced. However, in the case of Chan Pui-man, even though he was arrested on 17 June, the National Security Department of the police still granted him bail. This showed that whether a defendant would be detained depended on a number of factors including the evidence obtained before and after the investigation. Au just disregarded these circumstances. According to him, under the HKNSL, as soon as Chan was arrested, she would lose her liberty immediately. In fact, it was only when Chan was formally charged that the prosecution applied to the court for his detention. 362.I am of the view that A15 launched attacks on the enforcement of the HKNSL in respect of individual cases, as well as on the Department of Justice and the courts, without providing any objective basis. Thus, section 9(2) of the Crimes Ordinance does not apply. In the light of the social unrest and unstable public sentiment at the time of the incident, I find that A15 caused potential detriment to national security or to the public order and safety, with the intention to seriously undermine the authority of the Central Authorities or the SAR Government and the administration of justice in Hong Kong. It had the seditious intentions as stipulated in section 9(1)(a) and (c) of the Crimes Ordinance, namely bringing into hatred against the Central Authorities or the Hong Kong Government, and hatred against the administration of justice. 363.Article A16 was a profile interview on two interviewees claiming to be alumni of the Chinese University of Hong Kong (CUHK) who were anonymised as H and A. The article mentioned that the police took enforcement actions at CUHK starting from 12 November 2019, giving rise to the need to protect academic freedom against threats:
364.The article also mentioned that the students and alumni safeguarding CUHK had received wide support from local residents:
365.The article went on to describe the police actions:
366.On 11 November 2019, the protesters threw miscellaneous objects from No. 2 Bridge of CUHK onto the highway and railway tracks underneath the bridge. They were reckless as to whether the motor vehicles and trains passing by would be damaged or destroyed, or whether the personal safety of members of the public would be endangered. They breached the peace with a view to paralysing the major trunk roads, thereby forcing the government into responding to their demands. This is an undisputed fact. They started this kind of illegal act on 11 November 2019, which was continued on 12 November. These acts, together with the so-called “dawn campaign” and “daybreak campaign”, i.e. operations in which protesters in other districts blocked the major roads, aimed to call for the “three suspensions”, namely no work, no classes and no businesses, as a means to force the government to compromise. Undoubtedly, the police actions were not targeted at CUHK or its teachers and students but at the protesters at No. 2 Bridge who were causing danger to the public. This fact could not be clearer at the time when A16 was published two years later. 367.It was mentioned in A16 that the two CUHK alumni H and A had returned to the campus on 12 November 2019 for their respective reasons. On that day, H was already a teacher and A a journalist by profession. A claimed to have witnessed riot police officers storming the CUHK campus from No. 2 Bridge on 12 November, and students hiding themselves on the hillside, using trees and bushes as a cover-up and throwing miscellaneous objects to fight back. The first clash between the police and the protesters started at around 3pm on that day. During the time, the riot police were standing guard at No. 2 Bridge, while the protesters had formed a phalanx beside Sir Philip Haddon-Cave Sports Field / the tennis courts. A vast multitude of protesters hid behind large refuse collection vehicles and water barriers. They pushed towards the police along Campus Circuit East, which caused the latter to start firing tear gas. The incident was filmed by Cable TV News[104]. The footage showed that shortly after the first round of tear gas was fired, something was thrown at the riot police as could be seen on the left side of the screen. These objects came from the hillside opposite No. 2 Bridge, that is, the miscellaneous objects thrown by the students as described by A. However, the situation lasted for a very short time before coming to a stop. In the meantime, there was a confrontation between the police officers and the protesters who were at Campus Circuit East which lasted for about 15 minutes. Following that, the riot police moved from their location at No. 2 Bridge into Campus Circuit East to give chase and arrest the protesters. From this, one can see that A did not give a truthful account as to what had happened at that time. She did not mention at all that it was the protesters at Campus Circuit East who had first charged against the police cordon line, and that it was only after a standoff of about 15 minutes between the two sides that the police left their cordon line to give chase and make arrests. 368.According to the article, A recalled that the riot police had subsequently gone to the pavement beside the tennis courts, holding their guns and aiming at the yellow helmets (i.e. the protesters) from a distance. The Cable TV news footage showed that the riot police were beside Sir Philip Haddon-Cave Sports Field at that time. A went on to state that Sir Philip Haddon-Cave Sports Field was on fire, that rounds of tear gas landed on the track like missiles, that thick smoke was rising into the air, and that students on the field kept running away from the smoke amid the foul smell of burning plastic as if they were acting in the “great escape” part of a disaster movie. It could be seen from the news footage that the police officers did fire tear gas into the sports field where there were a large number of protesters who were wearing helmets and gas masks and filters. Nothing like the great escape as described by A was seen. As reported by Cable TV News, some vehicles were set ablaze on the road next to Sir Philip Haddon-Cave Sports Field and that was why the police could not go forward. I believe this was the very reason the police officers fired tear gas into the sports field. A did not mention this fact. 369.A also said, even with the gas mask on, she could still distinctly smell that odour and clearly see the police officers in front firing their guns. She could also clearly hear one of them say, “Burn it all.” These few words dealt a last heavy blow to A who could no longer hold back her tears. It was the first time that she had cried in her career; she said. “It never occurred to me that ‘Sir Philip Haddon-Cave Sports Field would be burnt’. During my four years at CUHK, I had been going to the sports field for PE (physical education) lessons and was always there as early as 8:30 am. It was really sad to see fire break out at an iconic place on the campus where we used to leave our footprints during our four years at CUHK.” From the whole profile interview, it seemed that after Sir Philip Haddon-Cave Sports Field was set on fire, A heard a police officer say, “Burn it all.” However, from the video of Cable TV News, Sir Philip Haddon-Cave Sports Field had not yet been set on fire when the police officer uttered those words. Furthermore, to be exact, what the police officer said was, “Burn it all. Kerosene is all over the ground.” Obviously, the police officer saw that the protesters at the sports field had splashed kerosene onto the ground and thus jeered at them and said, “Burn it all.” It was not a suggestion that the police should burn down Sir Philip Haddon-Cave Sports Field. Cable TV’s footage then captured a high jump mat in the sports field being on fire producing dense smoke. Actually, the mat was placed in a corner of the sports field and the fire did not seem to have affected the people there. In addition, according to the subsequent news reports, it was the students who had set the mat aflame. When the police officer said “burn it all”, the mat was not on fire yet. It was not the police officer who had burned the mat, and the sports field remained intact and undamaged. It was impossible that A would break down emotionally upon hearing the police officer say “burn it all”. It could not be true. 370.A then said that a glass bottle had burst in front of her. Having taken two steps forward, she found that the toe caps of her shoes were completely damaged and felt that there was a little tingling in her toes. She then realised that she had been injured by a corrosive fluid. She was persuaded by other fellow reporters to go to hospital for treatment. She had to stop her work suddenly. On the ambulance, she thought to herself: how is CUHK now? She wanted very much to stay on until the last minute. “My job was not to protect this place but to cover the news,” she said. “As I have planted my roots in CUHK, I naturally have a special feeling for it and was eager to return there at these moments as a witness.” According to what A said, the glass bottles were probably thrown by the protesters because it was impossible that the riot police next to her would bring along glass bottles containing corrosive liquids with them. It appeared that she was blaming the police officers for putting her work to a halt. 371.Throughout the whole article, A’s narrative was the evidence in relation to the use of force by police officers and their entry into the CUHK campus. According to other news reports, the riot police then returned to No. 2 Bridge and stationed there. There was no evidence to show that police officers pushed further into any part of the CUHK campus. 372.As a matter of fact, No. 2 Bridge of CUHK stands on government land. CUHK has been granted a non-exclusive right of way and is responsible for its repair and maintenance105. Therefore, the police officers did not enter any part of the CUHK campus in stationing at No. 2 Bridge. 373.Regarding H, he was a teacher and claimed that he went to CUHK with his friend at dusk to safeguard the campus after finishing his work at school on 12 November. He said that he actually wanted to go back to the university as soon as he had learnt that the first tear gas round had been fired on that day. He said he set off from Sha Tin town centre with his friend. At that time, he was still wearing a shirt and leather shoes and carrying a briefcase. Because of the severe traffic congestion, he could only walk and it took him around two hours to arrive. According to his description, it was already 11:00 pm when he arrived at Chung Chi Gate of CUHK. His account focused on the people he had met and what he had seen on the way. He was so touched because not only CUHK alumni but also other people, especially the kaifongs in Sha Tin, all wanted to protect CUHK. 374.I doubt the truthfulness of H’s narrative. To cite an example, he stated that he was wearing a shirt and trousers and carrying a briefcase, and walked to CUHK after teaching at school. On the way, he met a lady who was pulling a grocery cart. She thrust money for taxi fare at him and his friend. He himself was a teacher and was still wearing his work clothes and carrying his briefcase. Would any lady think that he was in need of money to take a taxi? Apart from that, according to the author, H hurried back to CUHK by setting off at dusk and walked all the way from Shatin Centre to CUHK. From my estimation, it probably took about two hours because there were just two stations in-between from Shatin Centre to the University Station by train. The distance should not be too far. Had H arrived at CUHK at 11:00 pm, he probably would have set off at about 9:00 pm, which did not tally with setting off “at dusk” as written in the article. What H said was intended to provoke readers’ emotions by making them believe that there was a need to protect CUHK that night. 375.From Cable’s footage, one can see that there was another large-scale and prolonged confrontation between the police and the protesters at No. 2 Bridge of CUHK and in its vicinity that night. Later, the police left and the protesters occupied No. 2 Bridge again. The footages and the news reports showed that the protesters then threw petrol bombs and other miscellaneous objects from No. 2 Bridge onto the highway and railway tracks underneath the bridge. This was the reason why they charged against the police cordon line. The so-called protecting CUHK was absolutely a fake notion. This CUHK incident only ended on 15 November. There was no evidence showing the police had interfered with CUHK’s institutional autonomy and academic freedom during or at any stage of this period. 376.The article continued to state that H and A had returned to CUHK two years later on the day of a graduation ceremony but there was no mention of the correct date. Both H and A felt that CUHK was no longer the same as before on their revisiting the campus. In brief, H said he used to believe that the university was a pure land where no intrusion by the regime was allowed, and that no matter what adversities were outside the university, the professors and the administration of CUHK would still uphold the principles and display the spirit of scholars. H expressed that when the security guards requested him to complete the identity registration procedure before entering campus, his dream of a pure land for academics was instantly shattered because a university is a symbol of freedom and openness. However, his remark was a bit exaggerated. After the 2019 anti-ELAB movement, as various universities were involved in the anti-ELAB movement and protests, the participants of which comprised both students and outsiders, a number of universities including CUHK implemented identity registration procedures starting from the end of 2019 for the purpose of protecting the university. It is beyond doubt that H genuinely cares about CUHK; otherwise he would not have returned to campus on 12 November two years earlier. In the circumstances, it was impossible that he was unaware of the visitor’s registration requirement which had already been imposed by the university. How could such a simple registration make the free and open academic environment of the university disappear? Another point is that, when the incident at CUHK took place in 2019, all the vertical banners, slogans, graffiti and writing on the campus were removed. H said as long as the Berlin Wall had not fallen, no one would knock it down. However, as shown in the footage of Stand News [Exhibit PA1(16)(c)] released together with the article, these vertical banners, graffiti and writing in CUHK in November 2019 included contents such as “Five demands, not one less”, “Hongkongers resist”, “Liberate Hong Kong, revolution of our times”, “Voice out and die, don’t be silenced and live”, “True universal suffrage”, “CU FIGHT BACK”, “V[iolent] U resists”, “STAND WITH HONG KONG”, “Conscience”, “Anti-communist College”, “Liberation, go” and “Liberate ART Revolution of our times”. There was also a pattern of “Guy Fawkes Mask”, too. The footage showed that all of these had been removed by November 2021. The university had no reason to retain these protest slogans on campus for so long, bearing in mind that most of them indeed carried the implication of Hong Kong independence. It was not that the university was afraid of the regime, but rather that the university must indicate very clearly that it neither advocated nor supported the independence of Hong Kong. The university was the victim in the sense that it had to remove such detrimental items and reinstate the campus, which could hardly be regarded as suppressing freedom of speech or not tolerating students’ expression of their opinions. 377.H said CUHK had become a secondary school because its people had changed: students no longer had the desire to pursue more knowledge, while professors no longer had the freedom to pass on the spirit of humanism. “There are places for you to study. There are places for you to have fun (extracurricular activities). That’s all and nothing more. They won’t take the initiative to conduct research or discover [new] knowledge, but just obey orders and follow the books.” As far as professors were concerned, they had also changed, too. They had been deprived of the freedom of passing on the spirit of humanism as the university had already been intruded by the regime. 378.What H and A had seen and heard at CUHK in November 2021 could hardly support or show that the measures taken by the CUHK administration had jeopardised freedom of access and freedom of speech on campus, and had stopped students from speaking out. Under such circumstances, the issue of whether the regime had intruded into the campus as alleged by H was totally irrelevant. As the university did not unduly interfere with the various freedoms on campus, it followed that such allegation that the regime had intruded into the campus and had interfered with academic freedom was unfounded. H, without providing any evidence, alleged that professors no longer had the freedom to pass on the spirit of humanism. He was just making unfounded assumptions or conjectures. Article A16 did not record that when he had returned to CUHK in November 2021, H had ever met with or talked to a professor to ascertain whether the latter had lost the freedom of passing on the spirit of humanism. 379.I am of the view that A16 did not provide any objective basis in alleging that the academic freedom of CUHK was threatened and needed to be protected. It criticised police enforcement actions with untrue facts and glorified the rioters’ acts. Thus, section 9(2) of the Crimes Ordinance does not apply. The article omitted the fact that the police had to deal with the riot occurring at CUHK at the time. Instead, it painted a picture that the police were suppressing the students. In addition, when Stand News published article A16, a video footage was embedded to compare the scenes of the campus during the riot with how the campus looked two years later. The footage depicted a number of scenes of the riot at the time, and slogans such as “Liberate Hong Kong, revolution of our times” could be seen. In my opinion, Stand News, by means of article A16, intended to re-display the protest slogans and to rekindle the violent protests which had already cooled down, thereby bringing the public into hatred against the SAR Government and the police. 380.In the light of the social unrest and unstable public sentiment at the time of the incident, I find that article A16 caused potential detriment to national security or to the public order and safety. Its intention was to seriously undermine the authority of the Central Authorities or the SAR Government and the administration of justice in Hong Kong. It had the seditious intentions as stipulated in section 9(1)(a) and (c) of the Crimes Ordinance, namely bringing into hatred against the Central Authorities or the Hong Kong Government, and hatred against the administration of justice. 381.A17 was a news report regarding Chow Hang-tung being given the “Distinguished Person for Advancing Democracy in China Award”. The article quoted Chow’s acceptance speech which contained the implicit comment that the law enforcement arising from the 2019 bill amendment as well as the enactment of the National Security Law of Hong Kong were acts by the CPC in the totalitarian suppression of a democratic social system and the law, and to undermine the freedom and openness of the society. After reading the article carefully, I consider that the article was of the nature of a news report and hence find that there was insufficient evidence to prove that article A17 had a seditious intention. (Comments on social media platforms) 382.It is the prosecution’s view that the readers’ comments on the social media platforms of Stand News in relation to the 17 articles reflected the seditious effect of the articles as well as their seditious intentions. 383.I will not infer whether an article has seditious intentions from the comments left by readers. Readers’ comments were commonly seen on the news reports or articles published by Stand News after they had been published on its website or social media platforms. When Stand News allowed these comments to be displayed on its website or social media platforms, so that readers having accessed the website or social media platforms could read them, I believe that Stand News could be regarded as having “published” these comments. However, the seditious publications at issue in this case are the articles published by Stand News, including articles A1 to A17, which are presented as evidence of overt acts, but not the comments made upon these articles. The comments, it is believed, were not made by any of the defendants, and there is no evidence that they approved of the contents of the comments, nor was there any law requiring them to remove any comments they did not approve of. Moreover, it is up to the court, in the performance of its jury function, to determine whether the articles at issue are written with seditious intentions. The writers of the comments are not qualified as expert witnesses, and their interpretations and/or reactions to the articles are not admissible as evidence of the facts. G6. Mens rea of the defendants 384.By now, 11 out of the 17 articles, namely A1, A4, A5, A7, A10, A11, A12, A13, A14, A15, and A16, have been ruled to have seditious intentions. I find them to be seditious publications. I have already ruled that sedition is a specific intent crime, but it is not necessary for me to rule in this trial whether the authors of these articles had a seditious intention because they are not the defendants in this case. The fact that the articles were published on the Stand News website and social media accounts is not in dispute, and D2 admits that he, as Chief Editor of Stand News, had approved the publication of all the articles except A16. At the time when A16 was published, D3 was the acting Chief Editor of Stand News, and the police had written to D3 (because of his capacity as Chief Editor), complaining about A16’s content, but A16 was published nonetheless. Therefore, the only reasonable and irresistible inference is that D3 approved the publication of A16 in Stand News. What follows is whether all or some of the three defendants knew that the articles were seditious and whether each defendant acted with mens rea (had the intent of sedition or was reckless as to the consequences of sedition). 385.According to the evidence of D2, D2 and D3 were only fulfilling the responsibility of the media to record the voices of the times and the views or the true feelings of different people. D2 testified that Stand News was not a political platform, nor did it advocate a particular political agenda, but only provided an open platform for different voices, including the views of dissidents, to be expressed. D2 opined that freedom of speech was beneficial to the country, and was a value that must be embraced by a democratic society. He stated that Stand News would also exercise the fourth power to monitor the use of public power. The defence points out that apart from dissenting voices, Stand News had also covered the voices and criticisms by the Government. The defence contended that if Stand News had a hidden agenda, it would not have covered the Government’s voice. 386.The defence points out that the prosecution stated in paragraph 661 of their written closing submission that they “cannot dispute that [D2’s] original and general aspiration is to achieve quality journalism, which might be one of the purposes for which he operated Stand News”. The defence argued that since achieving quality journalism was one of D2’s intentions, D2 having seditious intention could not be the only reasonable and irresistible inference. 387.I have considered the prosecution’s submission carefully. In paragraph 661, immediately after the sentence quoted by the defence, the prosecution went on, “However, this does not mean that he did not have seditious intentions at the time he published the articles.” The prosecution clearly emphasised that the key issue was D2’s intention at the time of the alleged offences, including the time of the publication of each of the questioned articles, but not at any other time. The prosecution by no means admitted the presence of doubt in their evidence. Of course, the burden of proof is on the prosecution. 388.The defence also stressed that the court must consider all the circumstantial evidence, especially the cumulative weight of all the circumstantial evidence. The defence submitted that the practice of other media outlets in reporting news and publishing articles was very important circumstantial evidence, because when Stand News acted in the same way as other media outlets, it showed that Stand News was only engaging in real journalism. The defence argued using the primary election of the democratic parties as an example; apart from Stand News, other media outlets also interviewed the candidates and published interviews with them. At that time, the Government did not say the media were not allowed to interview these candidates, and that even if the remarks of these candidates were detrimental to the public interest, the media still had the responsibility to cover them. I agree with this submission, but on the other hand, even if different media outlets cover the same event or issue, different reporting techniques, approaches or contents, and different publication intentions may lead to different consequences. 389.The defence also argued that other articles published in Stand News were also very important circumstantial evidence. As submitted by the defence, Stand News had been in operation for seven years and had published more than 100,000 articles, more than 20,000 at the time of the charge alone, but only 17 articles were questioned, and the prosecution could not allege the other articles, which accounted for more than 99.9% of the total number, were seditious publications. On this basis, it was submitted, a more natural and reasonable inference was that D2 and D3 did not have any seditious intention or criminal agreement all along. They had simply followed the philosophy of the Launch Statement to achieve quality journalism. They did not deliberately publish articles to bring readers into hatred against the Government, the Central Authorities or the judicial system, but only to disseminate information and pluralistic views in the public interest to the public. A1 to A17 formed only a tiny part of the pluralistic views. I do not think this submission is of much help to the defence. 390.Firstly, the prosecution has never admitted that, apart from articles A1 to A17, other articles published in Stand News were not seditious publications. At the commencement of the trial, the prosecution believed that the police had only downloaded 30 of the articles previously published in Stand News in their investigation, which led the prosecution to explain to the defence in their opening submission that they would only rely on 17 of those articles to prove the overt act of the alleged conspiracy. It was only during PW2’s testimony that the prosecution learned that the police had downloaded other articles in the course of their investigation, and the defence sought further disclosure. After enquiries, it was discovered that the total number of articles retained by the police was 587, and the prosecution immediately disclosed the remaining articles to the defence, but made it clear that they were not going to rely on the newly disclosed articles as evidence to prove the prosecution case, so as to avoid broadening the basis of prosecution which would risk unfairness to the defendant; nonetheless the prosecution reserved the right to use these articles as rebuttal evidence. It can be seen that it was only under these special circumstances that the prosecution limited the number of articles substantiating the prosecution case to 17 without trying to include other articles, but such a prosecutorial approach cannot by any stretch be taken to mean that articles other than these 17 were not seditious publications. 391.Secondly, if all the articles published by Stand News were products of good faith and in line with media practices and ethics, the defence would have no reason to object to the prosecution’s retention of the newly disclosed articles (that is, all the 587 articles) as rebuttal evidence because, according to the defence, they were plainly not seditious publications. Not only would they not contradict the defence case or evidence, they could even further prove that Stand News had all along been publishing non-seditious articles, thereby enhancing the credibility of the evidence of the defence. But the defence did not rely on these articles in their closing submission. 392.Thirdly, I agree that if a defendant’s past behaviour constitutes a pattern, this is one piece of evidence – indeed, important evidence – from which an inference can be drawn as to his intention, but the pattern must be established by evidence. There is no evidence to establish that the other 99.9 % of the articles in Stand News did not contain seditious articles. I am not saying that all or some of them are seditious, but what I need to do is to consider the evidence as a whole to determine one by one whether each of the articles in question, and whether each of the defendants, had seditious intentions. 393.In any event, as a matter of legal principle, a person who publishes a seditious publication with seditious intention is guilty of an offence, even if this is the first time he publishes a seditious article and has never done so before. Therefore, the absence of sedition in other articles is only one of the factors to be considered. 394.During D2’s testimony, he adduced as evidence an experimental publication by the Department of Journalism of the School of Communication of the Hong Kong Baptist University named “The New Journalist”, Issue No. 05, February 2015/16[105], whose cover title reads “Mainland funds buy up Hong Kong media companies, Hong Kong’s freedom of the press suffers setback” to prove that there were different voices in the media in Hong Kong, and that Mainland-funded media had even more voices. 395.The heading of one of the paragraphs in this publication reads: “Media bosses dictate media’s political orientation, interfering with editorial independence”; and the content reads: “In a survey conducted by this newspaper in December last year (2015) on the takeover of Hong Kong’s media companies by Mainland funds, it was found that 90% of the 105 respondents had indicated that they would pay attention to the political affiliation of the funders of media organisations; and more than 80% of the respondents had agreed or strongly agreed that the political stance of the shareholders of media companies would affect the reporting approach (e.g. editorials, commentaries, readers’ submissions, etc.) of their news organisations, and the majority of the respondents had agreed that owners of media companies played a crucial role in news reporting.” 396.That publication went on in the following paragraph: “Bosses are very influential in media organisations, according to Leung Tin-wai, Head of the Department of Journalism and Communication at the Hong Kong Shue Yan University. In the day-to-day operation of media organisations, bosses can express or determine the political stance of a media outlet through editorials, or influence the editorial work of the news organisations through appointments and changes in personnel: ‘Bosses tend to hire senior editorial staff who share a similar stance to their own. Such personnel appointment is hardly anything new in the journalism industry’.” 397.This publication was released in February 2016, not long before the establishment of Stand News, and the views mentioned above are consistent with my life experience. D2 testified that the Chief Editor of a media company could decide on its direction, the line it took and the yardstick of the contents, etc. but D2 also agreed that the final decision could be said to rest with the employer, who could dismiss the Chief Editor. Therefore, there is no doubt that in considering whether the three defendants had seditious intentions, the factors which I, as a juror, may take into account can include the source of funding of Stand News, the political background of the shareholders, editorials, published articles, publications, personnel appointments, and so on. (Trust Arrangements and Launch Statement[106]) 398.The starting point for the establishment of Stand News was naturally its Launch Statement, a document which is also the focus of the defence case. Ms Eu SC points out that the three defendants have been charged with conspiracy, and conspiracy necessarily involves two or more persons agreeing to commit certain criminal acts. Therefore, the central issues in the case are when the alleged agreement was reached, who agreed to it, what they agreed to do, when they agreed to do it, who agreed to do it, and so on. Ms Eu SC said that she could say at the outset that the Launch Statement described the agreement to set up and operate Stand News. She emphasised that according to the contents of the Launch Statement, the purpose of the agreement was lawful, the intended conduct was lawful, and the core values embraced by Stand News were universal values, and even more so values constitutionally protected by the Basic Law and the HKNSL. In addition, according to the evidence of D2, throughout the course of its operation, Stand News had been run in line with the Launch Statement. I agree that this Launch Statement is key evidence because it can show the agreement between D2, Tsoi and Yu at the time of the founding of Stand News, as well as the operational direction of Stand News. 399.In view of the importance of the Launch Statement, I set out in full its contents below. It can be divided into four parts, namely, Introduction and Charter, List of Directors, Frequently Asked Questions, and Launch Statement. 400.Under the heading “Introduction and Charter” is the following description:
401.There then follows the subheading “The Charter”, under which there are three icons, each with a line of text that reads:
402.In the List of Directors, it shows the photographs of Tsoi and D2, and describes Tsoi as “Corporate Manager, founder of Stand News”, and D2 as “Journalist, Chief Editor of Stand News”. 403.The next section is “Frequently Asked Questions”. There are 6 questions listed on the page, each question on a separate line, and at the right end of the line is a “v” symbol. Clicking on this symbol with a computer mouse will reveal the answer to that question, and another click will hide the answer. The six questions and answers are set out in the following order on the page.
404.The last part is the Launch Statement, which reads as follows.
405.As expressed in the Launch Statement, the purpose of D2, Yu and Tsoi in founding Stand News was to succeed the then defunct online media, House News. That was also echoed in D2’s evidence. Hence, in what circumstances House News was closed plainly had a direct impact on the composition and the structure of Stand News. 406.D2 testified that he had come to know Tsoi in the second half of 2011 when he had obtained financial news work outsourced by Tsoi. Around 9 months later in July 2012, Tsoi together with three other people founded House News which was held by a private company owned by Tsoi and funded wholly by Tsoi. Tsoi hired D2 and Yu as Chief Editors of House News and D3 as a reporter. D2 and Yu held no shares of House News, nor were they the directors. Suddenly on 26 July 2014, Tsoi announced on Facebook the closure of House News[107]. 407.D2 went on to testify that Tsoi had closed down House News because he had felt under pressure and that his personal freedom was under threat. Later, Tsoi, Yu and D2 wanted to be back in the media business again. However, from the experience with House News, they believed that if the company were to be wholly owned by Tsoi again, when he decided to end it due to any pressure or for any reason, the company would close down. Thus, after discussion, they created a trust, thereby giving up the financial interests in their equity and their rights to dispose of the shares. They surrendered their equity to the trust for long-term holding so that they would be unable to transfer their shares in the company. They wanted the public to know that it was futile to target any individual founder because each had no power to put this company to an end. Apart from that, D2 also pointed out that readers had lost their faith due to the sudden closure of House News. That was why they also wanted to spell it out to the readers that the company structure of Stand News was different from that of House News. It would not be closed down just because of any individual being threatened. They hoped that it would boost the readers’ confidence in Stand News. 408.D2 also described that company shares arrangements were handled by a secretarial service company or an accounting company specialising in company incorporation. It was Tsoi who had contacted this company the name of which D2 could not remember. D2 agreed that Stand News was owned by D1 which was owned by Web Network. Web Network was in turn held by Indepth Global. He and Tsoi and Yu, all three of them, jointly held one share of Indepth Global, i.e. each of them holding one third of a share. According to D2, he had never received any dividend or any interest nor was he required to pay for acquiring this one third of a share. 409.With regard to the trust arrangement, D2 testified that he believed that it was the same secretarial service company that had handled the trust arrangement and the incorporation of the two overseas companies. To his understanding, a company had to be incorporated before the financial interests of the equity and the rights to buy or sell the shares could be transferred to the trust. But his memory of it was not so vivid. D2 maintained that he had once signed some documents for the trust arrangement. As far as he could remember, though technically they still owned the equity, the financial interests of the equity and the rights to dispose of such shares in the future had been transferred to the trust. Ms Eu SC pointed out to D2 that the police search had revealed that there was no document showing this trust arrangement in the office of Stand News and asked D2 if he knew why. D2 replied he could only reckon that the documents were still kept by the secretarial service company or held by Tsoi but he was not certain about that. D2 explained, when Ms Eu SC asked further, that he had not kept or locked away the trust documents himself, but he remembered there was a set of trust documents in the office. D2 added, “But as I am unable to find it, I won’t speculate further. I don’t know, actually.” 410.D2 agreed, when cross-examined by the prosecution, that Tsoi was a businessman who had once been involved in political activities. In 2013, Benny Tai Yiu-ting had gathered 10 people to help promote the launch of “Occupy Central”. They were labelled the “Ten Martyrs of Occupy Central” and Tsoi was one of them. However, Tsoi came under fire for not turning up when “Occupy Central” was underway in September 2014. D2 conceded that one of the selling points of House News was political news. So when Stand News succeeded House News, they would continue with political news. 411.D2 agreed that Stand News was funded by Tsoi. He had been an employee while working at House News but he had become a director at Stand News. According to him, though the work at House News and at Stand News were the same, his becoming a director meant he would share in the risk and to some extent provide check and balance. In case decisions had to be made under extreme circumstances (e.g. whether or not to close down the company), the three of them could make the decision together. When cross-examined by the prosecution, D2 conceded that through the trust arrangement, they had handed over to the trustee the financial interests of their equity and the control over the company for the purpose of keeping the company running even if the three of them were taken away. 412.When the prosecution cross-examined D2 about why documents in relation to the trust were not found in the office of Stand News, D2 indicated he was not going to answer this question. He said he had a strong impression that at the time of the execution of the documents, someone had explained to him that in case the company was wound up, they would not get any benefits because they had already given up their financial interests. Hence they had requested the trustee to donate the items of the company to charity or non-profit making organisations. However, no specific beneficiary was named at the time; it was left to the trustee to decide. 413.In their closing submission, the prosecution alleged that such a trust arrangement as described by D2 never existed. The defence stressed that D2’s evidence tallied with the Launch Statement, and that common sense dictated that there was no reason for Stand News to deceive readers. The defence was also of the view that whether or not such a trust ever existed had no direct bearing on the issues in this case, that it was neither here nor there. 414.In the course of considering whether the trust arrangement for Stand News ever existed, I first thought about the reason behind the sudden closure of House News. The relevant evidence is Tsoi’s post on his Facebook on 26 July 2014[108]. In this post, he gave his account for the reason for the closure and announced the immediate closure of House News. D2 did not deny in his evidence that this post had been uploaded by Tsoi. As D2 was the Chief Editor of House News back then, he must have known that the post was indeed from Tsoi and that Tsoi had explained why House News would be closed down. 415.In his post, Tsoi referred to two reasons for closing down House News. First, he felt fear. Second, he had misjudged. He said he felt fear because the atmosphere of political struggles back then was extremely disturbing. He related that quite a few democrats were being stalked, smeared and their past being raked up. He also felt under stress, though he did not claim to have had any personal experience in such matters. He also expressed that being a businessman and travelling a lot to the Mainland for business, he was always on edge when crossing the border. Nonetheless he added, “But am I just being over-paranoid?” In other words, he had never been detained or picked on when crossing the border; otherwise he would have spoken of such things happening instead of thinking aloud, doubting if he had been “over-paranoid”. It was apparent that Tsoi’s fear arose from his sensitivity, if not his imagination. Actually, he had experienced no real threats against his personal safety or freedom of movement. As to his misjudgement, Tsoi said he had misjudged the market. He said “last month” (i.e. June 2014), the number of daily average unique visitors of House News was 300,000, which was thought to be good. However, when the social and the market atmosphere was abnormal, the advertisement income of House News was disproportionate to its influence. He elaborated that there had never been a month that break-even had been achieved since inception. And the biggest problem was that in the foreseeable future, the social atmosphere in Hong Kong would only get more intense. He was unable to see the light at the end of the tunnel from the business perspective. Tsoi also mentioned that someone had asked him whether House News had experienced any advertisement being withdrawn. He answered in the negative because “how can it be withdrawn when it has never been placed?” He remarked, “Not only has the core value of Hong Kong been distorted, the market has also been distorted”. At the end of his post, he concluded that his fear and misjudgement had stemmed from his “past belief that Hong Kong remained a normal place, and his wholehearted thought of being a citizen who cared about Hong Kong and a businessman who believed in the market.” But he was wrong, “It turned out to be a mistaken fantasy that I could be a normal citizen and businessman in an abnormal society and market.” He then apologised to his co-workers, family, bloggers and both domestic and overseas readers for the sudden closure of House News. In the end he said, “You all realise at last that I am just an ordinary man. I have truly tried my best and this is it as far as I can go.” 416.In his post, Tsoi never alleged that he was pressurised to end House News. And his alleged fear and concern did not arise from any actual incidents but his feelings. Apparently, it was his personal decision as well as an autonomous business decision to close House News. It had nothing to do with his personal safety or freedom. Or at the very least, business consideration was the most important factor. House News was in operation for about two years from its launch to its closure. According to Tsoi, there was never a month when break-even was achieved for House News. He was the only one who had funded the operation of House News, and undoubtedly, his accumulative loss till that moment must have been quite considerable. Furthermore, according to his estimation, the social atmosphere back then was getting more intense. He could not see the light at the end of the tunnel from the business perspective. Moreover, Tsoi pointed out an important reason. When he was asked if any advertisement had been withdrawn, he replied, “No, how can it be withdrawn when it has never been placed?” In other words, House News did not earn any or enough income from advertisement. When a business was losing money for as long as two years and there was no prospect, it was simply natural for one to cut one’s loss and leave by closing the business. Unless Tsoi was a multi-billionaire not bothered by indefinite and unlimited loss of money, ending House News was the only reasonable business decision. 417.On the other hand, the undisputed and indisputable fact is that on 8 December 2014, Tsoi had already become the director of two overseas companies, i.e. Web Network and Indepth Global. Indepth Global was the only shareholder of Web Network at the time and Tsoi was the only shareholder of Indepth Global. It was not until some time afterwards that D1 was set up in Hong Kong on 16 December 2014. D1’s only shareholder was Web Network. From these facts, the only reasonable and irresistible inference that can be drawn is that on or before 8 December 2014, Tsoi, Yu and D2 had already decided, by consensus, to operate an online media and started to get Stand News off the ground. 418.It is against the backdrop of these facts that comes the apparent question: within a period as short as four and a half months between 26 July 2014 and 8 December 2014, how did Tsoi overcome the two major negative factors leading to his closing down of House News, and gain the desire and confidence to invest in an online media business again? I believe that it was easy for Tsoi to resolve the fear issue, which only required him to stop being “paranoid”. But how did he solve the problem of long-term and continuous loss of money? Tsoi had stated that no advertisement had been withdrawn from House News as none had ever been placed. When Tsoi, Yu and D2 defined Stand News as a second edition of House News, how could they have expected that Stand News would receive more advertising revenue than House News did and break even? It is untenable to argue that Tsoi did not mind losing money. That is because if he were a man of means which allowed him to lose money and moreover he was willing to lose money, he would not have closed down House News suddenly four and a half months earlier. Hence, the only reasonable and irresistible inference is that Tsoi had his financial difficulties tackled and his concern allayed within the four and a half months. Surely, there must have been a funder who had already funded or had promised to fund the working capital needed. There might have been one or more than one funder, who could be an individual or a group. In any event, this or these funders did not inject the capital for profit making because from the experience of running House News, it was possible to say that losing money was inevitable or, at the very least, the period of loss would not be short. 419.I am certain that this inference is correct because it is consistent with the answer to Frequently Asked Question 5 of the Launch Statement. The answer to that question reads: “Initial operating funds were donated by some Stand News board members and others who share Stand News’ philosophy. All donations were unconditional.” According to D2’s evidence, both he and Yu lacked the means at that stage. So it can be deduced that “some Stand News board members” in that answer certainly referred to Tsoi who had provided some of the startup capital. With regard to the identity of “others who share Stand News’ philosophy”, neither that answer nor other parts of the Launch Statement elaborated on it. 420.The Launch Statement was silent about the amount of the startup capital. So was D2’s testimony. D2 was interviewed by Apple Daily on 23 May 2020, and the interview was published in Apple Daily on 21 June 2020[109]. According to that report, D2 “disclosed in 2015 that the monthly expenditure for the media outlet was roughly $500,000 while the office was lent by a friend as a goodwill gesture.” Therefore, an educated guess is that the abovementioned donor must have provided Stand News with seed money in the sum of many times of $500,000, because as a matter of course, it would take a media outlet some time before it would be able to establish its reputation and business in order to earn income from advertisement. In particular, at its inception, Stand News had “stopped accepting public donation for the time being.”: see Question and Answer 4 in Frequently Asked Questions in the Launch Statement. It can be inferred that the funds provided by these donors must have amounted to millions of dollars. 421.According to the bank records of Stand News[110] and the evidence of Detective Police Constable 4420 (PW25), D1, through D2, Yu and Tsoi, had applied to HSBC to open an account on 5 Jan 2015 and had obtained approval to open a Business Direct HKD Savings account and a HKD Current account. Money could be deposited into this savings account by way of cash, transfers (including bank interest) or cheques, and, starting from 20 May 2015, also by way of PayPal, after an application was made to PayPal by D2 on behalf of D1[111]. According to PW25’s evidence, D1’s net income in this savings account was HK$7,190,377.44 in 2015. The number of crediting transactions was 1,077[112]. I notice that within the 12 months of that year, there were not many deposits in the sum of HK$100,000 or more, and they totalled HK$5,878,066.21, representing 81.75% of the net income for the year. They were:
422.Despite the lack of direct evidence, since the Launch Statement explained that parts of Stand News’ startup fund had come from “others who share Stand News’ philosophy” and that the donations were in the sum of millions of dollars, the only reasonable and irresistible inference is that these donations came into D1’s bank account by large deposits. The abovementioned deposits that were over HK$100,000 did not appear to be Stand News’ ordinary operating revenue. Even on the assumption that all the money credited to the account in cash or through PayPal were operating revenue, and the total amount of the six cheque deposits mentioned above was as much as HK$5,100,000; and even on the further assumption that not every cheque deposit was a donation fund, by the time when Stand News ceased operation, save one cheque deposit of HK$2,308,150 on 4 July 2019, the account had not received any other cheque deposit of HK$1 million or more. Therefore, these two cheque deposits of HK$2,300,000 and HK$1,300,000 remarkably stood out and were exceptional to Stand News in terms of their amounts. The deposit of HK$2,300,000 was made on 23 January 2015, which was just at the initial stage of the operation of Stand News; and the deposit of HK$1,300,000 was made about four months later. The only reasonable and irresistible inference to be drawn is that these two cheque deposits totalling HK$3,600,000 were startup funds provided to Stand News by donors, which were sufficient to allow Stand News to operate for at least six to seven months even with no revenue. 423.It is against this factual background that I consider the evidence of D2 on the trust arrangements. In his evidence, D2 insisted that he had signed documents concerning the trust arrangements with Yu and Tsoi, but he failed to state clearly the contents of the documents. Nevertheless, I believe that they did sign documents in relation to the trust, because there are some documents supporting D2’s testimony on that. 424.According to the evidence of Police Constable 16505 (PW22), during the search in Zone A at Stand News’ office, he found a black recycle bag containing Indepth Global’s company documents[113] and Web Network’s company documents[114] on the left side of the top compartment of a metal document cabinet. The photo exhibits[115] show where these items rested. As shown in the photographs, the website, “www.offshore-inc.com”, is printed on the outside of the black recycle bag. PW22 also found House News’ documents[116] in the lowest compartment of the same metal cabinet. Therefore, this cabinet appeared to be for keeping documents related to the media business. D2 and D3 do not dispute that the police found these documents and where they were found upon search[117]. 425.Mr Tang, PW15, works at the Vistra International Group. In his evidence, PW15 stated that some companies under the group provided the services of setting up overseas companies. He obtained from the office computer the electronic copies of the company documents of Indepth Global and Web Network and the computer records of some invoices and receipts[118]. An Indepth Global Certificate of Incumbency (“Certificate of Appointment”) dated 10 December 2014 showed that Tsoi was the sole director and shareholder of Indepth Global as at 8 December 2014. The issuing company of the Certificate was “Offshore Incorporation Limited” (“Offshore Incorporation”), which was the company name printed on the aforesaid recycle bag. At the top of the document there was the logo, “OIL”[119]. PW15 explained in his evidence that this company was the former company name of Vistra. 426.Among Indepth Global’s company documents found by the police in Stand News’ office, pages 17 to 21 of exhibit bundle PC13 are “British Virgin Islands (“BVI”) Business Companies (“BC”) Practice Notes” issued by Offshore Incorporation in June 2014. Its company logo is “OIL”. The document on page 15 is titled “Documents in Company Kit – Indepth Global Limited”, which appears to be a list of documents setting out what documents are inside the Indepth Global company kit. The first item on the list of documents is “Memo from OIL to Indepth Global Limited”, which appears to be a memorandum issued by Offshore Incorporation to Indepth Global. The 2nd to the 29th items appear to be Indepth Global’s company documents, including minutes of meetings, the register of shareholders, the register of directors, and the company seal and chop. Page 14 of the exhibit bundle PC14 is a list of documents issued by Offshore Incorporation to Web Network, recording which documents are kept in Web Network’s company kit. 427.As illustrated by these documents, it is beyond doubt that Offshore Incorporation was the company helping Tsoi with incorporating the two companies, Indepth Global and Web Network, in December 2014. From the lists of documents of the two companies, it appears that they were updated on 25 February 2020. 428.In Indepth Global’s list of documents[120], three of the documents appear to be of significance. They are:
These documents appear to be records of company activities and resolutions prepared or retained in accordance with the company’s memorandum of Indepth Global, and hence were kept in the company kit. Although the originals of these three documents are missing, the descriptions given by the list of documents suggest that they are related to the trust arrangement. Therefore, I believe that Tsoi, Yu and D2 did sign the documents related to the trust on that day. As D2 referred to only one trust arrangement, the document they signed must be or included in the “Declaration of Trust dated Jan 19, 2015”. The question that follows is, “What is the content of this declaration of trust?” 429.Despite the absence of the text of this declaration of trust, I am able to, based on the evidence of D2 and the legal principles under the law of trust, infer some basic terms in the declaration of trust. In D2’s evidence, he recalled that, under the technical arrangements, the three of them still owned the shares of Indepth Global, but he, Yu and Tsoi had given up the financial interests of their equity and their rights to dispose of the shares; and they were also informed that, in the event of liquidation of Stand News in the future, they would have to give up the residual assets of Stand News as well. Therefore they, too, had agreed to donate the property to non-profit making or charitable organisations. It can be inferred from D2’s evidence that the three of them must have acted as the trustees under this trust, because under the law of trust, the legal ownership of trust property necessarily belongs to the trustees, whereas the beneficial interests of trust property, by operation of law, go to the beneficiaries at the moment they become the trustees of the property (for instance, when the declaration of trust is made). Hence, the declaration of trust signed by D2, Yu and Tsoi, must have included the provision that they undertook to be the joint trustees, that the single share of Indepth Global stock jointly owned by them was the trust property, that they undertook to discharge the duties of trustees, that they would manage and use the trust property for the purpose of the trust and for the benefit of the beneficiaries, that they gave up the financial interests of equity, and that they would not assign or transfer their trust property to others without the consent of the beneficiaries. It can be inferred that the declaration of trust dated 19 January 2015 must have included other terms stating the identities of the beneficiaries, the purpose of the trust, the responsibilities of the trustees in greater detail, etc. 430.According to D2’s evidence, the purpose of this trust arrangement was to make known to the public that targeting the three founders of Stand News or any one of them would be futile, as they were unable to assign the company’s shares. They believed that this would enable Stand News to continue developing. I do not believe that this was the genuine reason, because had there been truly outsiders targeting or forcing out Stand News, the most direct way would have been to force them to terminate the operation of Stand News, instead of making them surrender the shares. Tsoi, Yu, and D2 surely understood this clearly, because in their own words, the abnormal death of House News had been caused by Tsoi’s personal freedom and safety being threatened, whereas they have never claimed that anyone had forced Tsoi to surrender his shares of House News. In other words, whether or not they were able to assign or transfer Indepth Global’s shares had nothing to do with their ability to avoid or endure suppression. 431.On the other hand, if Tsoi truly was the sole funder of Stand News (D2 had explained that he and Yu lacked means), this trust would not have possibly been created, because under a trust arrangement, a trustee cannot terminate a trust without the consent of the beneficiary. However, Tsoi had no reason to agree to be deprived of the power to withdraw and cut losses. From the experience of House News failing to secure commercials, Tsoi would not possibly have agreed to run the risk of suffering continuous loss without being able to withdraw. Neither was there any reason for him to be controlled by D2 and Yu who were his protégé. Hypothetically, once Stand News had suffered too much loss to be able to continue operating, D2 and Yu would surely agree to the shutting down of Stand News by Tsoi. It would have rendered this trust superfluous. It demonstrates that this trust was certainly created for others to prevent Tsoi from shutting down Stand News unilaterally. 432.Who, then, were the others (be they an individual or a group, one or more than one)? The answer cannot be more obvious – they must have been the donors who had provided Stand News with the startup capital. On 19 January 2015, Tsoi purposely made a report to the Board of Directors of Indepth Global about the matter of “donation”. The Board then passed a company resolution adopting and accepting the declaration of trust, followed by the execution of the declaration of trust. It is apparent that there was a direct relationship between this “donation” and the declaration of trust. The donors had every incentive to demand that they be made the beneficiaries of the trust to ensure and monitor the funds injected into Stand News would be properly spent. Furthermore, creating a trust is a convenient way to conceal the identities of the donors, for had they chosen to become shareholders and/or directors of Indepth Global, their names would have appeared on the register of shareholders and directors of Indepth Global. 433.On the other hand, in order to acquire the startup capital, Tsoi had sufficient incentive to agree to the trust arrangement. D2 and Yu had no reason to disagree. While acquiring the fund to enable Stand News to operate, they could earn a salary by working at Stand News. They were to suffer absolutely no loss either. D2 stated that they had given up the shares and the financial interests in equity of Indepth Global. However, had D2 and Yu not agreed to the trust arrangement, they would not have become shareholders of Indepth Global at all. They knew and had agreed that, for the purpose of the trust arrangement, they would all along be merely nominal shareholders. It is proved by the facts that, after they had signed the declaration of trust on 19 January 2015, a deposit of HK$2,300,000 was made to Stand News’ bank account on 23 January, the same year. 434.Based on the above facts and analysis, I draw the only reasonable and irresistible inference that, when Tsoi, Yu and D2 signed the said declaration of trust, the beneficiaries of the trust were the donors of the startup capital (be they an individual or a group, one or more than one). In other words, the beneficiaries of the trust had already existed, and their identity confirmed. It can be inferred that the declaration of trust dated 19 January 2015 would certainly have recorded who the beneficiaries were, or how to identify the beneficiaries. Of course, the whereabouts of this declaration of trust is now unknown. 435.In evidence, D2 recalled that the company had kept a trust document. He stated that if it had not been found in the police search, he would not make any speculation. I do not know whether he was implying that the police had not seized this trust document deliberately, or had discarded such documents. I am of the view that this trust document, if it truly had been placed in Stand News’ office, would have been put together with Indepth Global’s company documents, because it was related to the shares of Indepth Global. In other words, they would have been kept in the black recycle bag on which the website address of Offshore Incorporation was printed, and which was placed in the top compartment of the metal cabinet. However, in fact, neither the bag contained such documents nor did the police find them anywhere else in Stand News’ office. I believe that the police officers must have paid attention to documents which appeared to be of assistance to the police enquiry into Stand News or the relationship between Stand News and other individuals or companies. Therefore, there is no possibility that the police officers had deliberately skipped over or discarded such trust documents during the seizure, or had overlooked them during the search. 436.Furthermore, it is noteworthy that the police officers seized from Stand News’ office a black hard drive[121], from which the printouts of an organisation chart[122] and Summary of Company[123] of D1 were obtained; therein, the respective structures of D1, Web Network and Indepth Global, and the connections among the 3 companies were set out[124]. It is beyond doubt that Stand News stored on its computer the particulars of the company’s structure, but for unknown reasons, there were no records therein as to the trust arrangements concerning the shares of Global Indepth, or the particulars in the trust documents, including the identities of the trustees, the subject matter of the trust, and the identities of the beneficiaries. The omission obviously has nothing to do with the search of evidence by the police. Instead, someone deliberately did not save such information. 437.When the prosecution cross-examined D2 as to why there was no such trust-related documents found in Stand News’ office, D2 said, “I do not have much to say in response”. He said that he had a deep impression that when he signed the document, someone had explained to him that in case the company was wound up, they would not be entitled to any benefit because they had already given up their financial interests; they therefore demanded that the trustees donate the company’s assets to charitable or non-profit making organisations, but the names of beneficiaries were not given and that the trustees were to distribute them. The prosecution asked D2 who the trustee was given that the beneficiaries were to be nominated by the trustees. D2 said, “If my memory serves me right, it was HSBC.” When pressed by the prosecution, he said, “Anyway, it was a company specialising in this kind of trust arrangement, the business of trust”. When the prosecution further asked, “That is, you people patronised HSBC, who was to name some unknown person as the trustee, and this trustee would further decide to which beneficiary the money would go in the future. That was the arrangement?” D2 answered, “That is what I recall, mm.” I am of the view that this part of D2’s evidence is not credible. He was being ambiguous about the identity of the trustee. He, Tsoi and Yu were already the trustees, so why was another trustee needed? Further, he indicated that the trustee would nominate a beneficiary in the event of liquidation of Stand News, and the beneficiary would be given the assets as a gift. However, in the Launch Statement, it was stated that the trust arrangement was for Stand News not to be controlled by anyone, to be able to have “sustainable development”, that is, to be able to carry on with media work. It was not about dealing with and allocating Stand News’ residual assets when it was liquidated. I am certain that D2 concealed from the court the identities of the beneficiaries (that is, the donors), or at the very least, concealed the means to identify the beneficiaries. 438.I believe that, in the declaration of trust dated 19 January 2015, the identities of the beneficiaries or the means to identify the beneficiaries were set out. Apart from this, Stand News’ office kept the company documents of Indepth Global, but not the declaration of trust dated 19 January 2015 and the relevant documents. Stand News’ computer that stored the information of its company structure did not contain any records of the beneficiaries of the trust either, but the beneficiaries held Stand News’ beneficial interests. Moreover, at least in theory, in accordance with the design of the trust stated in the Launch Statement, in the event that D2, Tsoi and Yu were unable to discharge their duties, Stand News’ development would still be able to continue; that means this trust would still carry on, but the beneficiaries’ information was absent. Under such circumstances, the only reasonable and irresistible inference is that the information of the beneficiaries under the trust was deliberately removed and concealed. 439.Based on the interconnections among Indepth Global, Web Network, D1 and Stand News, I am certain that, after Tsoi, Yu and D2 had signed the declaration of trust dated 15 January 2015, the beneficiaries of the trust owned the beneficial interests of Indepth Global, Web Network, D1 and Stand News, regardless of how the legal ownership of these companies or organisations was held by different entities. Simply put, Tsoi, Yu and D2 essentially ran Stand News for the beneficiaries of the trust (that is, the funders) who did not wish to be identified. 440.When I say that the beneficiaries of the trust were the “funders”, I do not mean that Tsoi did not need to provide Stand News with further funds, because the Launch Statement clearly stated that Tsoi provided funds as well. Likewise, I do not rule out the possibility that Tsoi had other financial arrangements with the beneficiaries of the trust. However, there is no doubt that without the startup capital from the sponsors, it would not have been possible for Tsoi, Yu and D2 to found and run Stand News. 441.Against the background of the trust arrangements, I now consider the contents of the Launch Statement. I make the following findings. 442.Firstly, the Launch Statement suggested, explicitly or implicitly, that the suppression faced by House News as a media outlet had led to its “abnormal death”. This is not true. The real reason behind the closure, as stated in a post[125]on Tsoi’s Facebook page, was unfounded fears, with Tsoi questioning whether he was being “paranoid”. The primary cause for the end of House News was a business decision by Tsoi, as the business had been in deficit for as long as two years due to a lack of advertisements. In a capitalist economy, it is a customer’s business decision whether or not to place an advertisement, and this remains a normal business decision even if influenced by political reasons. As a businessman, Tsoi would surely be aware of this. Therefore, it was not an “abnormal death” for House News. 443.Secondly, the Launch Statement suggested, explicitly or implicitly, that the trust was created to resist external suppression. This is not true. The reasons were to acquire startup capital and to prevent Tsoi from unilaterally shutting down Stand News. 444.Thirdly, the trust arrangements mentioned in the Launch Statement did not reflect or did not clearly reflect the actual state of affairs of the trust. Under the trust arrangements, the beneficiaries were the beneficial owners of Stand News. Tsoi, Yu, and D2, as trustees, had to operate Stand News in accordance with the trust arrangement. The claim in the Launch Statement that “all donations are unconditional” is incorrect. Donors provided startup capital to become trust beneficiaries, which was a condition. 445.In re-examination, Ms Eu SC asked D2 about the reference to “stance” in the Launch Statement. D2, in his testimony, had referred to the values of Stand News. Ms Eu SC asked D2 to clarify the issues regarding the values and stance of Stand News. D2 stated that their platform pursued and adhered to some core universal values, but in terms of political position, “(it) did not take any stance.” 446.However, D2’s testimony does not align with the Launch Statement, which reads: “Stand News, like House News, is Hong Kong-oriented, and firmly believes that Hongkongers are to determine our city’s future. Democracy, human rights, freedom, the rule of law and justice are the core values of Hong Kong that we are committed to upholding.” The first part of this sentence illustrated the stance of Stand News, while the second half stated its commitment to safeguarding Hong Kong’s core values. 447.Careful analysis indicates that the sentence begins with “Stand News, like House News” to tell readers that Stand News shared the same philosophy as House News. The next part, “(it is) Hong Kong-oriented,” literally means that Stand News prioritised Hong Kong and based all its considerations on it. The following section, “(it) firmly believes that Hongkongers are to determine our city’s future,” directly stated Stand News’ firm belief that the people of Hong Kong should decide Hong Kong’s future. Stand News was established in December 2014, a time when theories of separatism and segregation from China, such as localism and nationalism, were gaining traction in Hong Kong society, particularly in the tertiary education sector. The Occupy/Umbrella Movement had just ended unsuccessfully, and Tsoi, the proprietor of House News, once hailed as one of the “Ten Martyrs of Occupy Central,” had become a deserter but claimed he was going to run a media outlet aligned with House News once again. To appeal to readers and supporters under these circumstances, it was necessary to explain Stand News’s political proposition to the public, especially given its launch at that time. It would not be surprising for it to share its political views and media line with readers. 448.After reading the entire Launch Statement, it is clear that the stance of Stand News extended beyond merely safeguarding universal values. Immediately following the aforementioned sentence, it is stated that: “by naming it Stand News, we are as fearless as ever in taking a stand, without any disguise or evasion.” Declaring a “stance” must have implied that the beliefs and insistence that Stand News had on certain issues might not be universally accepted. By stating there would be no “disguise or evasion,” it acknowledged that its beliefs and insistence might not be embraced and could even provoke resentment. Therefore, it is evident that the “stance” claimed by Stand News did not refer solely to universal values. The next sentence, “we insist on reporting the truth and will not twist the facts because of stances,” emphasised a commitment to factual reporting regardless of their philosophy. It continued with, “Stand News allows different stances and viewpoints to clash,” indicating that while it maintained its own stance, others were entitled to theirs, and the differences or similarities would not affect their clashes on the platform of Stand News. 449.The final sentence of the Launch Statement is pivotal: “Hong Kong is the home turf of Hongkongers; defending the home turf is our unyielding stance.” First of all, “Hong Kong is the home turf of Hongkongers” obviously means that Hong Kong belongs to the people of Hong Kong, who have the right to control and lead, make decisions on all affairs, and have absolute power and influence, whereas others are merely guests without decision-making authority over Hong Kong’s affairs. The following part, “defending our home turf”, must mean safeguarding the status and interests of Hong Kong people in Hong Kong, and when considered together with the earlier statement, “firmly believes that Hongkongers are to determine our city’s future”, the meaning of “defending our home turf” must include safeguarding the power of Hong Kong people in controlling their own future. The ensuing part reads, “(defending the home turf) is our unyielding stance”. When it comes to “yielding”, the prerequisite is that there must be an opposite party to Stand News; otherwise, there would be nothing for Stand News to yield to. However, that party must be the People’s Republic of China, which exercises sovereignty over the HKSAR, as well as the Central Government and the SAR Government, which enforce the constitutional order and status of the HKSAR. In essence, with this statement, Stand News expressed in strong terms its political proposition, which was Hong Kong’s localism for Hongkongers’ autonomy excluding China. I am sure that Stand News had made its political stance clear in its Launch Statement, and it is an absolute lie for D2 to claim that Stand News did not take a political stance. I reject this area of his testimony. 450.Considering the establishment of Stand News, its Launch Statement, and the trust arrangement made by Tsoi, Yu, and D2 with their funders who did not wish to disclose their identities (who according to the Launch Statement approved of Stand News’s journalistic philosophy), I am certain that D2 and Tsoi and others, for the benefit of the anonymous funders, operated an online media outlet in Hong Kong called Stand News to support and promote localism for Hong Kong’s local autonomy. 451.I notice that D2, in his testimony, and counsel for the defence, in their final submission, reiterated that Stand News, D2 and D3 all acted in accordance with the Launch Statement. 452.Having addressed the source of funding for Stand News and its political proposition as stated in the Launch Statement, I now turn to some of the editorials published by Stand News. D2 testified that the editorials were the collective work of the editorial desk and had been reviewed and approved by him, representing both Stand News’s and his stance. D2 pointed out that Stand News published very few editorials because they only addressed cardinal issues of principle or matters concerning universal values, freedom, and democracy. On these issues, they would not conceal their stance. D2 also testified that on major issues of right and wrong, he shared the same views as Tsoi and D3. (Stand News editorial “Why we ‘target’ the police” (14 June 2019))[126] 453.D2 testified that the editorial was issued after the large-scale police-civilian conflict outside the Legislative Council on 12 June 2019, as he had already noticed problems of police power or police brutality at that time. The editorial made it clear that Stand News did not target police officers personally, but emphasised that the police, as the only law enforcement force in Hong Kong legally allowed to use force against the public, must be subjected to the most stringent standards of scrutiny and monitoring. This was because their force and power were in no way proportional to the protesters they were facing. This scrutiny was the greatest mission of the media as the fourth power. At the end of the editorial, Stand News stated that it would stand firmly on the side of the egg, and that was why they targeted the police and the regime. Even without guns and cannons, but only pens and cameras, they would continue to be in the frontlines. Even if they were like a mantis trying to stop a chariot, they still wished the truth to be revealed and justice to be served. 454.D2 maintained that this editorial aligned with the Launch Statement because the issue of police power involved fundamental human rights, freedom, and the rule of law, and that the monitoring of police power was a crucial function of the media. D2 submitted several news reports[127] to prove incidents of improper use of force by police officers on and after 12 June 2019, which proved there was a factual basis for this editorial. 455.Undoubtedly, Stand News and D2 could use their online platforms to pen and publish editorials that monitor and even criticise the police. However, they had to consider and analyse all relevant facts that could be verified through honest and reasonable efforts, and then express their views honestly and ethically based on these facts. 456.The first paragraph of the editorial began with a reference to the police-citizen clashes on 9 June and 12 June 2019; Stand News claimed to have documented what had actually happened. It then said: “We can proudly state our stance: we are ‘targeting’ the police.” This wording was rather provocative. Why was Stand News proud to “target” the police? Why did it have to sound emotional instead of simply pointing out what was wrong with the police force? The editorial used emotionally charged words from the start, displaying hostility towards the police. Protesters and their supporters, who just two days prior had been involved in what officials had characterised as a riot, must have been pleased that Stand News appeared to sympathise with and supported them. 457.The editorial stated that “what we are ‘targeting’ is not police officers personally, but the fact that the police, as the only law enforcement force in Hong Kong legally allowed to use force against the public, must be subjected to the most stringent standards of scrutiny and monitoring...”. The reasons listed thereafter included: (1) The force and power possessed by the police were in no way proportional to that of the protesters they were facing; (2) Should confrontation erupt between the two parties, the police had the power to treat all people at the scene – including protesters, onlookers and the media – as suspects or thugs, and they could resort to nearly unlimited force to disperse, subdue and arrest them; (3) Even if they were repeatedly found to have abused their power and made arbitrary arrests in the process, the number of police who were sanctioned and prosecuted was very small and the consequences were minimal. In contrast, after protesters faced assaults, tear gas, and even rubber bullets and bean bag rounds, what awaited them was often years of imprisonment. When such unlimited force and power were abused, people were like meat on a chopping board, ready to be slaughtered. 458.Whilst I fully agree that the Police Force must be restrained and monitored in their use of force, the reasons given in this editorial were specious. First of all, the police and the protesters were not engaged in a sports competition, and differences in equipment were inevitable. Therefore, the focus should have been on whether the police had misused their equipment. For example, there would be no reason to attack the protesters first without cause, or to use equipment that is unnecessary in types or in numbers for the situation at hand. Each time, it was a matter of judgment depending on the situation on the spot. Additionally, the editorial specifically mentioned, “In contrast, the protesters had only eye masks, face masks, and umbrellas, and even though some of them were holding paving blocks, there was still a disparity of force between the two sides.” The editorial clearly referred to the situation on 12 June 2019, but the truth is that protesters dug up bricks from the pavement and threw them at police officers standing at the police cordons, which were violent acts that could have caused serious injuries and deaths. Stand News should have pointed out the misdeeds committed by the protesters, rather than downplaying and endorsing their unlawful behavior by using the “disparity of force” as an excuse to absolve them. 459.Regarding the second reason, the police did not have the power to use almost unlimited force. They could only deploy reasonable force to disperse people who needed to leave the scene, and their power was subjected to checks, balances, and supervision. Thirdly, cases of police officers being held criminally liable for abusing their power and making arbitrary arrests have occurred from time to time. For example, in the case of the so-called seven police officers and Superintendent Chu, the officers involved were prosecuted for mistakes made during the Occupy/Umbrella Movement. Most were convicted and sentenced to imprisonment, with their appeals to the Court of Final Appeal dismissed. Furthermore, even more importantly, it had only been two days after 12 June when Stand News published this editorial. In this short period, no one could have predicted whether any officers would be prosecuted or face disciplinary hearings for improper performance of their duties. By claiming that officers who abused their power would face little or no consequences, Stand News was disseminating unfounded statements to protesters and the public, thus arousing anti-police sentiments. Whether the public is at the mercy of the police depends on whether the police have “unlimited force and power” and whether they have abused their power. On 14 June 2019, it is doubtful that Stand News could honestly and reasonably have drawn such a conclusion based solely on the events of 9 June and 12 June. 460.However, it is neither necessary nor my intention to make a ruling on whether the enforcement of the law by the police at the demonstrations on 9 June 2019 or 12 June 2019 was proper or was an abuse of power. I would only like to point out that when Stand News said outright that they were not “targeting” police officers personally but the Police Force, it did not imply that individual officers should not be held responsible. Instead, it elevated any mistakes made by individual officers during the demonstrations to systemic errors by the Police Force. The problem is that when accusing the police of systemic errors, there must be evidence that the police had instructed and/or condoned the abuse of power and arbitrary arrests, but Stand News did not provide such evidence and only portrayed the police as an abusive law enforcement force. 461.The intention of Stand News was fully revealed in the following passage. The editorial said, “The police, as the weapons in the hands of the government, use force to build a high wall behind which the executive can hide and do as it pleases. We must remind them that their power does not come from the regime, but from the people, and that their guns should not be pointed at the people, and that the high wall they have built should not block the people’s way to freedom.” However, the primary duty of the Police Force is to maintain public order (see section 10(a) of the Police Force Ordinance, Chapter 232 of the Laws of Hong Kong). On 12 June 2019, large crowds surrounded the LegCo from early morning, and there had already been calls and organisations for protesters to besiege the LegCo before that day (see feature article of Stand News, “How did the pre-publicised storming take place?” (see paragraph 212)). It was impossible for the police to take no action to protect the Legislative Council. Moreover, had there not been protesters storming the police cordon line on 12 June, the police would not have enforced the law. This is very clear because the police were far outnumbered by the protesters and there was no reason to stir up trouble. Stand News described the actions of the police at the time as a defence of the executive’s recklessness. However, there is no factual basis for this, nor is there any basis for saying that the executive was using the police to implement tyranny. Stand News concluded by stating that it would stand on the side of the protesters. (Stand News editorial “Attacks on journalists are a big deal Collapse of the system is a bigger deal” (23 July 2019)[128]) 462.Undoubtedly, D2 wrote this editorial because the 721 incident at Yuen Long Station had happened. The arrangement of the article was that right at the beginning, D2 put the scene of the police shooting at protesters with tear gas, beanbag rounds and rubber bullets in Sheung Wan together with the scene of the white-clothed thugs armed with rattan canes, wooden rods and iron pipes attacking members of the public in Yuen Long, so that one might easily associate one incident with the other, i.e. both the police and the white-clothed thugs had attacked other people, and they were on the same front. 463.Apart from that, D2 said that the white-clothed thugs had attacked members of the public “indiscriminately”. However, on what basis did D2 form such a judgment? Since Stand News was doing live coverage when the Yuen Long Station incident happened, D2 must have known or at least had direct evidence to know about the details of the Yuen Long West Rail Station incident when he authored this editorial. There was no way he was ignorant about the fact that there had been a period of time when two groups of people inside and outside the paid area of the station (those outside the station being collectively referred to as the white-clothed men) were hurling abuses and throwing objects at one another and so on; some people inside the station had also shot water at the white-clothed men. Subsequently, the white-clothed men entered the paid area on the ground level, and the people inside the station then moved to the platform that was on the upper level. Originally, the white-clothed men did not pursue these people, but later on, with some people on the platform throwing objects at them, the white-clothed men ran up to the platform and attacked the people thereat. There is no doubt that what the white-clothed men did was wrong and they had committed a serious crime. However, they were not attacking members of the public “indiscriminately” but those with whom they had had verbal and physical disputes for some time. Those people inside the station should definitely also be held accountable for their actions. D2’s portrayal of them as absolutely innocent in the editorial was not fair. 464.In the article, D2 strongly condemned the mob attack on journalists; he was absolutely entitled to do so and was even obliged to do so. However, neither D2 nor any other editorial or feature article of Stand News had ever condemned the use of violence by the protesters. 465.In the editorial, D2 went on to note, “But while worrying about the safety of journalists and denouncing savage acts, we must not forget, acquiesce in, connive with or contribute to the crumbled and ruined system that has facilitated these savage acts.” This was the first time D2 had ever mentioned “system” in the editorial, and it is apparent from the context that by “these savage acts”, he meant the savage acts of the white-clothed men inside the West Rail Yuen Long Station. In other words, D2 was alleging that “the crumbled and ruined system” acquiesced in, connived with, contributed to and facilitated the white-clothed men’s savage acts. 466.D2 said he did not mention “police in cahoots with the triads” or accuse anyone of collusion in the editorial, but what he meant was structural violence and calls for changes to the system. D2 further explained that since 12 June, many things had emerged giving rise to doubts and public concerns over police power, but the Government had failed to give any effective and direct response. At that time, people were concerned about what would happen given the Government’s hard-line attitude in spite of the conflicts between the police and the public. Unfortunately, the 721 incident occurred in the end. This incident had seriously affected the Government and the Police Force, causing their image and credibility to fall off a cliff. It was not difficult for people to discern that at the end of the day, the problem was attributed to public opinion and public sentiments in Hong Kong not having been adequately reflected in the elections of public officers. D2 alleged that an adequately democratic system was actually absent in Hong Kong. If there had been an adequately democratic system in Hong Kong, there would have been a mechanism to alleviate or cope with the conflicts in the face of major political events. This was because if a government had experienced a number of incidents and its popularity had dropped drastically, it was highly likely that the government or the ruling party would step down, or that there would be a mass resignation from the cabinet or a change of the leader. In D2’s view, there were many ways to effect these changes under a democratic system because public opinion should be reflected in the elections of public officers, public sentiments should be reflected in the legislature to exert pressure on those in power, and the arrangements in the system should make the government respond. But sadly, this problem had never been resolved in the system of Hong Kong. According to D2, this was the problem of structural violence that he talked about in the editorial. 467.D2 was not credible. In the editorial, he described at length the inaction of police, that high-ranking officers of the force were putting their arms around the shoulders of the suspected culprits and being “appreciative” of their good intentions, “acquiescing in, conniving with and facilitating the triads and getting others to take revenge on the protesters”, etc. He was making an accusation of or at least alluding to collusion between the police and the triads. In the article, D2 employed descriptions like “despicable” and “to die ten thousand deaths is not enough to cover up their guilt” in his scathing criticism of the police. 468.D2 also remarked, “Since the outbreak of the anti-ELAB movement in June, the question that has been haunting the minds of Hong Kong people is: How could Hong Kong have degenerated to such a state? The focus should never be on the visible violence only. There is only one root cause, that is, the invisible structural violence brought about by the imbalance of public power in the political system and materialised through the guns and shields of the police, which has torn Hong Kong’s apparent prosperity and stability to shreds.” 469.D2 had taken advantage of what had happened on the night of 721 to express his own ideas. As seen from the testimony of D2, the idea put forward by him or Stand News was that the absence of a democratic system in Hong Kong had led to police brutality and indifference on the part of the Government, and that there had to be a democratic system in Hong Kong, which was not in place, in order to bring about changes in this regard. In other words, he was advocating for a change of system (which I believe included the electoral methods for the head of the HKSAR and for the Legislative Council). (Stand News editorial “Hold fast to every inch of free soil Use every glimmer of light making its way through tiny crevices” (Dated 1 July 2020)[129]) 470.The first and second paragraphs of the editorial spread panic. 471.In the second and third paragraphs, “one country, two systems” was claimed to have been distorted and the NSL was vilified. As the NSL had become effective for less than 12 hours at the time when this editorial was issued, there was no way for him to know how the law would be enforced in practice. On the other hand, he was completely silent about its effect in ending chaos in Hong Kong and protecting national security. 472.Another aspect is that D2 portrayed Hong Kong as a place ruled by a totalitarian government, where Hong Kong people had no freedom of association, freedom of speech, freedom of assembly, freedom from fear, and were suffocating under the window of legal weapons. 473.D2 then quoted the words of former Czech President Havel that under totalitarianism, everyone might become a dissident, and the so-called dissident was not a role deliberately chosen by anyone. Simply by being loyal to themselves, people were already at risk of going beyond the red line, being classified as second-class citizens, and becoming an enemy of the system. D2 was essentially telling the people of Hong Kong that regardless of whether they had taken part in any anti-government activity before the enactment of the NSL, they could possibly become a dissident and an enemy of the system and be subjected to suppression. 474.D2 concluded by saying, “we will always turn to the free soil and resort to every glimmer of light that makes its way through tiny crevices,” implying that Hong Kong had lost most of its freedom and was going to lose it altogether. He was questioning the legality and legitimacy of the Central Authorities and the SAR Government. 475.That D2 did not accept the constitutional order of “one country, two systems” can be seen from the antepenultimate paragraph of the editorial. He said that the miracle of Hong Kong in the crevices had always been because of the air of freedom and the difference between Hong Kong and the Mainland. His use of terms such as “this borrowed place” and “borrowed time”, which were used to describe Hong Kong when it was under British rule, revealed his nostalgia for the era of British rule. He remarked, “separated by a river, the precious land of Hong Kong as it is, came by virtue of its difference from the Mainland; the freedom that is original and rare, has become the glory on the frontier of the powerful nation.” That showed his non-acceptance of the return of Hong Kong to the People’s Republic of China. 476.The last line of the editorial reads: “May we all be united, brave the gun fire and not live our lives in vain.” There was no doubt that D2 and Stand News were boosting the morale of the protesters and making it clear that they were working together. The purpose of D2 and others continuing to run Stand News was to fight alongside the protesters. (Featured discussion at the summit for online media on 14 December 2019 [Transcript Exhibit PH7(3)]) 477.D3 attended the summit for online media as a guest speaker to talk about the live coverage of the demonstrations by Stand News. At that time, D3 was there in the capacity of the Deputy Chief Editor of Stand News and spoke on behalf of Stand News. In his speech, D3 explained to the audience that from the live coverage by Stand News, the audience would often see a lot of scenes involving the use of force, be it by the police or by the protesters, scenes depicting vigilantism, a lot of blood and injuries. According to D3, when they did live broadcasts, they were unable to reflect what was going on behind the scenes. He further explained, the simplest questions were why this group of people considered the use of force appropriate means, or even whether they had any bottom line or a common standard for the use of force; this could not be reflected in the live coverage. That was why they would do interviews and ask questions of the interviewees in the hope that they could explain in detail why they used force and what their thinking was behind the launching of the petrol bombs. Before ending his speech, D3 concluded:
478.I have given careful consideration to the speech of D3, who asked the audience not to only focus on what was shown on the screen when watching the live broadcast done by Stand News, but to consider as well what it was like behind the scenes. D3 pointed out that there were often scenes of blood and injuries in the live broadcast footage, but he asked the audience not to focus on these images, but rather to think deeply about why the protesters had used force and whether there were any criteria for them to do so. D3 invited the audience to understand the movement itself and the participants of the movement better in order to have a common ground for discussing and commenting on the movement and its people, and even for participating in the movement. No doubt, he appealed to the audience not to separate themselves from the protesters for the reason of their resorting to violence or serious violence, but to consider why the protesters did what they did. Obviously, he was trying to ask the audience to understand the use of force by the protesters, from which it could be inferred that he had a supportive attitude towards the protesters; also, D3 finally called for the audience to even participate in the movement. D3 did not testify. D2 tried to explain this by stating that he believed that D3 was only asking the audience to understand more about the movement and the protesters in order to have discussions. I find that D3 meant exactly what he said at the forum summit. I am sure that the stance of D3 and Stand News was to support the anti-ELAB and the protesters. 479.News Stand was a paper publication of Stand News. It contained a number of articles aiming to present aspects like the creativity, the actions and the price paid along the protest journeys of Hong Kong people. 480.Concerning the part about actions, it was entitled “Prelude to the protest 6.12” and contained the featured article “How did the pre-publicised storming take place?” The article mentioned how on 12 June 2019, protesters besieged the Legislative Council resulting in the police taking actions. The author pointed out that the protesters were occupying the roads around the Legislative Council, not resigning themselves to repeating the ultimate failure of the prolonged occupation of the Umbrella Movement. They were ready to escalate the battle to storm the Legislative Council, following the example of Taiwan’s Sunflower Movement. The article ended with this sentence, “The 6.12 storming has opened up the valiant face of the Anti-ELAB Movement.” 481.Concerning the price paid, there were two articles as follows:
482.News Stand also included the above-mentioned Stand News editorial that vilified the HKNSL. Its content questioned the legality and legitimacy of the Central Authorities and the SAR Government, expressed nostalgia about the era of British rule, rejected the constitutional order of “one country, two systems”, and refused to accept the reunification of Hong Kong with the People’s Republic of China[131]. This editorial obviously encouraged the public to resist the Central Authorities and the SAR Government. 483.Apart from the articles, News Stand also contained a number of photographs, images etc. The most notable photograph was the first one on the back of the cover. The photograph was labelled as taken on 9 June 2019. It showed a large number of people participating in a march and demonstration in which the demonstrators were holding banners that read: “Reclaim Hong Kong” and “Independence of Hong Kong”. The photograph appeared before the preface, which was a prominent position, reflecting the main theme of News Stand. 484.News Stand used the flag of Hong Kong Independence as the photograph reflecting its main theme, recorded the violent storming of the Legislative Council as the prelude to the protest, encouraged readers to engage in long-term protests by asserting that the violent storming was a continuation of the 2016 Fish Ball Revolution and that the revolution was for love, and strived for support by stating that protest was a community belonging to everybody. I am of the view that News Stand was actually a record of protests, aiming to document and motivate the localism camp to grow into a localist force fighting for Hong Kong autonomy through the Anti-ELAB Movement. According to D2’s evidence, News Stand was issued in December 2020. As the articles therein were published in the online media of Stand News before December 2020, the publication of News Stand by Stand News was a re-confirmation of the contents and the messages conveyed by those articles. (The line taken by Stand News) 485.From the background of the inception of Stand News, its Launch Statement, its three editorials and its paper publication, which is News Stand, I rule that the political ideology of Stand News was localism, and that the line it took was to support and promote Hong Kong local autonomy, and that it had even become a tool for smearing and vilifying the Central Authorities and the SAR Government during the Anti-ELAB Movement. My ruling does not mean that Stand News could not publish other non-seditious publications, such as non-political news, messages from the government or pro-establishment, or even interviews with government officials or pro-establishment figures. The defence that Stand News also published other publications does not affect my ruling. (Whether there was mens rea in publishing the articles) 486.D2 as the Chief Editor of Stand News, admitted having approved the publication of articles A1, A4, A5, A7, A10, A11, A12, A13, A14 and A15, which I have ruled to be seditious. Having regard to the line that Stand News took, I find that D2 had knowledge and he approved of the articles’ seditious intentions, and offered Stand News as the publishing platform to incite hatred towards the Central Authorities or the Hong Kong Government, to excite inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of matters established by law, and to incite hatred towards the administration of justice. In any event, D2 had at least been reckless about the consequences of seditions. I find that D2 had the mens rea for section10(1)(c) of the Crimes Ordinance. 487.When article A16 was published, D2 had already left the post of Chief Editor and was succeeded by D3. I believe that D2 genuinely resigned from that post as he needed more free time to visit his wife who was in custody, but D2 was still concerned about and advised on the operation of Stand News. I find that article A16 was approved and published by D3. Having considered the line that Stand News took, D3’s speech in support of the Anti-ELAB Movement when he appeared in the forum summit for online media in the capacity of Deputy Chief Editor, the act of embedding video clips that showed again slogans of the protests and the persistence in publishing A16 despite the complaint letter from the police about it being misleading and biased, I find that D3 had knowledge and he approved of the article’s seditious intentions, and had offered Stand News as the publishing platform to incite hatred towards the Central Authorities or the Hong Kong Government and to incite hatred towards the administration of justice. In any event, D3 had at least been reckless about the consequences of seditions. I find that D3 had the mens rea for section10(1)(c) of the Crimes Ordinance. 488.D1 employed D2 and D3 as the Chief Editor / Acting Chief Editor for the production and publication of the articles in question on behalf of D1. As such, publishing these articles by D2 and D3 within the scope of the employment was tantamount to publishing the same by D1, and their intentions amounted to D1’s intentions. Since D1 was the proprietor, printer and publisher of Stand News, he was also presumed to have published the articles under section 15 of the Local Newspapers Ordinance, Chapter 268 of Laws of Hong Kong. G7. Conspiratorial agreement existed between the defendants 489.The evidence shows that Tsoi provided funds to set up D1 for operating Stand News, signed D2’s employment contract, approved D2’s salary increase and approved the deployment of funds to the UK branch office. D2 also admitted that Stand News was the operating platform that Tsoi had provided to him (“to create a stage”) for him to operate. Evidently, Tsoi was the other directing mind and will, who had a higher position than D2 and had the control of D1 and Stand News’ operations. Stand News ceased its operations shortly after the arrest of D2 and D3. I am sure that it was Tsoi’s decision[132]. 490.Tsoi, being the directing mind and will of D1, had the control of Stand News’ operations and had a higher position than D2. The only reasonable inference is that he must have had knowledge of the publication contents. In his testimony, D2 stated that the two of them shared similar stances on key core values or major issues of principles. D2 used to be an editor of House News that had been run by Tsoi previously and was invited by Tsoi to join as the Chief Editor upon the establishment of Stand News. D2 agreed that the Chief Editor could be removed from office, but he remained in that post until the arrest of his wife; he then had to visit her every day, rendering it impossible for him to work. Therefore, Tsoi must also have approved of D2’s decisions regarding publishing the publications. 491.From Tsoi’s invitation of D2 to join Stand News as the Chief Editor, his knowledge of the contents of the publications by Stand News, and his approval of D2’s decisions regarding publishing the publications, including publishing the above publications which have been ruled to be seditious[133], I draw the only reasonable inference that Tsoi, on behalf of D1, had an agreement with D2 regarding publications by Stand News, namely the conspiratorial agreement as stated in the charge of this case, on the continuous publication of seditious articles in Stand News. 492.D3’s taking over of the post of Chief Editor after D2 had left the post must have received the consent and approval of Tsoi. Undoubtedly, with Tsoi’s consent, there existed the same agreement with D3, as with D2, regarding publications by Stand News. In other words, when D3 took over the post, he joined in the above conspiratorial agreement between Tsoi and D2. D3’s speech at the forum summit for online media and his approval and publication of A16 also support such an inference. 493.The prosecution has proved beyond reasonable doubt that the three defendants conspired to publish and/or reproduce seditious publications, and I find the three defendants guilty of the charge.
[1] Chapter 200 of the Laws of Hong Kong [2] Paragraph 1 of the Admitted Facts (Exhibit P1) [3] Paragraph 11 of the Admitted Facts admitted by both parties (Exhibit P1) [4] Chapter 268 of the Laws of Hong Kong [5] Paragraphs 28-30 of the Admitted Facts (Exhibit P1) [6] Paragraphs 28-30 of the Admitted Facts (Exhibit P1) [7] Including pages of Stand News on social media platforms such as Facebook, Instagram, YouTube, Twitter and Telegram (Admitted Facts (Exhibit P1) paragraph 23) [8] Chapter 622 of the Laws of Hong Kong [9] Chapter 221 of the Laws of Hong Kong [10] 31st October 2022 [11] Including the social media pages of Stand News [12] Stand News issued a public notice on 27 June 2021 (Exhibit PB2) stating that blog posts published on or before May 2021 would be taken down temporarily for risk assessment. (The defence submitted that social media links to A1 to A17 in the website of Stand News could not operate (were dead) after they were taken down: See paragraph 23(4) of the defence written submission on preliminary issues dated 20 September 2022) [13] 3 November 2022 [14] 7 November 2022 [15] The defence cited HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, Lewisham LBC v Elias [2004] Env LR 14, etc. [16] The defence cited HKSAR v Chen Keen [2021] HKCFI 3546 and Boucher v The Queen (1954) 110 Can CC 263 [17] Paragraph 45 of the defence’s written submission of 28 November 2022 on the application for a stay of proceedings [18] Paragraph 33 of the prosecution’s opening submission [19] Decision of the National People’s Congress on the Establishment and Improvement of the Legal System and Implementation Mechanism of the Hong Kong Special Administrative Region for the Safeguarding of National Security Voted on at the Third Session of the Thirteenth National People’s Congress on 28 May 2020 [20] See HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, paragraphs 39-47 of the judgment [21] Evidence that it can be obtained from the newsroom and the wayback machine [22] Paragraph 31 in the above [23] See exhibits PA(1)(A) to PA1(17)(A) [24] Exhibit PB1 [25] Another online media which ceased operation in July 2014 and was related to the establishment of Stand News. See the launch statement of Stand News (Exhibit PC9(25)) [26] Exhibit PC9(25) [27] Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, which was implemented in the SAR by virtue of the Promulgation of National Laws 2020 (L.N. 136 of 2020) [28] Exhibit PB1 [29] See paragraph 149 below [30] See paragraph 114 below [31] Protesters stormed the police line around the Legislative Council on 12 June 2019, see paragraphs 453 to 461 below [32] Attacks on members of the public by white-clothed thugs armed with rattan, wooden rods and iron pipes on 21 July 2019 in Yuen Long, see paragraphs 462 to 469 below [33] See paragraphs 470 to 476 below [34] See paragraphs 477 to 483 below [35] See HKSAR v Tong Ying Kit [2021] HKCFI 2200 [36] See paragraph 149 below [37] The Admitted Facts (Exhibit P1) [38] Exhibits D2(89) and D2(91) [39] Exhibits D2(5) and D2(6) [40] Exhibit D2(1) [41] Exhibits D3(3) and D2(4) [42] See paragraph 114 below [43] Exhibits D2(12A), D2(12B) [44] The defence cites cases such as Pedersen v Denmark (2006) 42 EHRR 24 and Apple Daily Ltd v The Commissioner of the Independent Commission Against Corruption [2000] 1 HKLRD 647 [45] The defence cites cases such as Jersild v Denmark (1995) 19 EHRR 1, Thoma v Luxembourg (2003) 36 EHRR 21 [46] The defence cites Filatenko v Russia (2010) 50 EHRR 35 [47] The defence cites cases such as Jersild v Denmark (1995) 19 EHRR 1, and Pui Kwan Kay v Ming Pao Holdings [2016] 2 HKC 518 [48] The defence cites Thoma v Luxembourg (2003) 36 EHRR 21 [49] The defence cites BBC Editorial Guidelines [50] Exhibit P35(1) to (4) (not including the 587 articles disclosed by the prosecution) [51] Exhibit PC9(25) [52] The defence cites Archbold Hong Kong 2023 §36-27 [53] Exhibit P1 [54] Exhibit P1 [55] Interpretation of section 9(1) of the Crimes Ordinance in accordance with section 2A(3) of and Schedule 8 to the Interpretation and General Clauses Ordinance, Chapter 1 of the Laws of Hong Kong [56] Paragraphs 73 to 80 of the judgment [57] Paragraph 25 of the prosecution’s closing submission on 29 May 2023 [58] Chapter 383 of the Laws of Hong Kong [59] Article 39 of the Basic Law [60] Chow Nok Hang (2013) 16 HKCFAR 837 [61] Article 16 of the Hong Kong Bill of Rights [62] The defence cites cases such as Boucher v The Queen [1951] SCR 265, Lai Man Ling [2022] 4 HKLRD 657, etc. [63] Paragraphs 27 to 31 of the closing submission of D2 and D3, and paragraphs 15 to 26 of the supplementary closing submission [64] HKSAR v Tam Tak Chi [2024] HKCA 231 paragraphs 120 and 131 [65] HKSAR v Tam Tak Chi [2024] HKCA 231, part C3.1 of the judgment [66] HKSAR v Tam Tak Chi [2024] HKCA 231 para 160 [67] See HKSAR v Ng Ngoi Yee & ors [2024] HKCFA 24, parts L.3 and L.6 of the judgment [68] Exhibit D2(8) [69] Exhibit D2(169) [70] Exhibit P39(1) [71] Exhibit P39(2) [72] Exhibit P39(3) [73] Exhibit D2 (169) [74] Exhibit P35(1) to (4) [75] Annex 11 to prosecution’s closing submission dated 29 May 2023 [76] Exhibit D2(31) [77] Exhibit D2(32) [78] Exhibit P34 [79] Exhibit PC25(9) [80] Exhibit PC35(19) [81] Exhibit D2(33) [82] Exhibit D2 (236) [83] Exhibit P35(12) entry 583 [84] Exhibit D2 (230) [85] Exhibit D2 (231) [86] Exhibit D2 (232) [87] Exhibit D2 (233) [88] Exhibit D2(234)(A) and (B) [89] Exhibit D2(234)(C) [90] Exhibit D2 (232) [91] Exhibit D2 (234A) [92] Exhibit D2(234)(A) and (B) [93] Exhibit D2(265)(A), (B) and (C) [94] Exhibit D2(265)(B) [95] See exhibit D2(265)(B) [96] Exhibit P35(11A) [97] Exhibit P33(40) [98] Exhibit P33(40) [99] [2022] HKDC 208 Paragraph 82 [100] See footnote 19 above [101] Justice and Security (Northern Ireland) Act 2007 [102] HKSAR v Ng Gordon Ching-hang & Ors [2024] HKCFI 1468 [103] Exhibit D2(143) [104] Exhibit D2(327A) [105] See HK01 Report - Exhibit(D2(332)) [105] Exhibit D2 (209) [106] Exhibit PB1 [107] Exhibit P37(1) [108] Exhibit P37(1) [109] Exhibit P37(2) [110] Exhibit PF1 [111] Exhibit P23 [112] Exhibit P23A(1) [113] Exhibit PC13 [114] Exhibit P14 [115] Exhibits PD36 and PD37 [116] Exhibits PC20 and PC21 [117] See paragraph 56, the Admitted Facts (Exhibit P1) [118] Exhibit PE5(2) to (6) [119] See page 5 of the bundle, Exhibit PE5E(2) [120] Page 15 of the bundle, Exhibit PC13 [121] Exhibits PC10(9) [122] Exhibits PC11(C) [123] Exhibits PC11(D) [124] See paragraphs 44, 53 & 54 in the Admitted Facts, Exhibit P1 [125] Exhibit P37(1) [126] Exhibit P37(6) [127] Exhibits D2(222) to (229) [128] Exhibit P37(9) [129] Exhibit P33(10) [130] Exhibit PC9(25) [131] See paragraph 481 [132] See paragraph 12 above [133] See paragraph 384 above | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases cited in this judgment
Further hearings and rulings under DCCC 265/2022