HKSAR v. Wong Kin Chung
Read the full judgment text of CACC 92/2024 on BabelCite. This Court of Appeal judgment was delivered on 15 April 2025.
1. The applicant was charged with one count of “conspiracy to incite the commission by other persons of the offence of secession”, contrary to Articles 20 and 21 of the National Security Law (NSL) [1] and sections 159A and 159C of the Crimes Ordinance [2] . He pleaded guilty before HH Judge Lin (“the trial judge”) and was sentenced to 60 months’ imprisonment. He now seeks leave to appeal against the sentence. [3] The principal issue to be dealt with by this Court is whether the tiered sentenci
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[English Translation - 英譯本] CACC 92/2024, [2025] HKCA 349 On Appeal From [2024] HKDC 640 IN THE HIGH COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION COURT OF APPEAL CRIMINAL APPEAL NO 92 OF 2024 (ON APPEAL FROM DCCC 210 OF 2023) ___________________
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___________________ JUDGMENT ___________________ Hon Poon CJHC (giving the Judgment of the Court): 1.The applicant was charged with one count of “conspiracy to incite the commission by other persons of the offence of secession”, contrary to Articles 20 and 21 of the National Security Law (NSL)[1] and sections 159A and 159C of the Crimes Ordinance[2]. He pleaded guilty before HH Judge Lin (“the trial judge”) and was sentenced to 60 months’ imprisonment. He now seeks leave to appeal against the sentence.[3] The principal issue to be dealt with by this Court is whether the tiered sentencing bands under Article 21 of the NSL (NSL21) apply. A. Proceedings at trial A1. Particulars of Offence 2.The Particulars of Offence averred that the applicant “between the 1st day of July, 2020 and the 1st day of November, 2022, both dates inclusive, in Hong Kong, conspired with others to incite other persons to organize, plan, commit or participate in acts, whether or not by force or threat of force, with a view to committing secession or undermining national unification, namely separating the Hong Kong Special Administrative Region or any other part of the People’s Republic of China from the People’s Republic of China; altering by unlawful means the legal status of the Hong Kong Special Administrative Region or of any other part of the People’s Republic of China; or surrendering the Hong Kong Special Administrative Region or any other part of the People’s Republic of China to a foreign country.” A2. Facts of the case 3.The facts admitted by the applicant can be summarized as follows.[4] A2.1 Hong Kong Independence Party 4.The Hong Kong Independence Party (HKIP) was a political party and a limited company registered in the applicant’s name in the United Kingdom. It advocated for separation of the Hong Kong Special Administrative Region (HKSAR) from China; alteration by unlawful means of the legal status of the HKSAR, and surrender of the HKSAR to a foreign country, including but not limited to, seeking the restoration of British rule over the HKSAR; requesting the United States, the United Kingdom, and/or NATO to send troops to invade the HKSAR; seeking foreign support for the separation of the HKSAR from China, and paving the way for the HKSAR to eventually become a British Commonwealth country. A2.2 The online posts in question 5.HKIP had six online platforms, social media accounts and channels:
6.On the six online platforms, HKIP repeatedly propagated its Five-Point Platform:
7.Between 16 September 2019 and 1 November 2022, the six online platforms published a total of 42 posts advocating the separation of the HKSAR from China. Among the 42 posts in question, 21 pertained to four specific activities, namely:[6]
8.On 30 June 2020, the NSL came into effect in Hong Kong. Between 1 July 2020 and 1 November 2022, 35 of the above posts remained published on the six online platforms. The hyperlinks of the posts on HKIP’s Facebook account were reposted on its other online platforms.[7] 9.HKIP’s website, Facebook account and Instagram account were closed before December 2021. However, its remaining Twitter account, Telegram channel, and Telegramgroup stayed active and accessible to members of the public on the day of the applicant’s arrest, i.e. 1 November 2022. A2.3 The applicant’s role 10.The applicant was the chairman of HKIP and one of the administrators of its six online platforms mentioned above. He had full knowledge of the publication of the posts and their ongoing publication on the six online platforms. 11.In a cautioned video-recorded interview, the applicant admitted that HKIP was registered in his name as both a political party in the United Kingdom and a limited company. He was entrusted with managing the social media accounts and website of HKIP. Additionally, he became an administrator of the Telegram group of HKIP. The applicant claimed to have no knowledge of HKIP’s operations or other information, and that he did not author the profiles or posts of the above online media. He also indicated that his mobile phone had connections with the aforementioned online media because it had been used by others. A3. Reasons for sentence 12.The applicant was born in Hong Kong and holds a Hong Kong identity card. He was 41 years old at the time of the conviction and he claimed to be a musician. He emigrated in 2014, holds a Portuguese passport and has obtained right of abode in the United Kingdom. Although he studied and worked in the United Kingdom, he still has relatives in Hong Kong. 13.The applicant stated that his mother was suffering from dementia, and he hoped to be released early enough to reunite with her. He submitted mitigation letters written by friends, former colleagues, and supervisors. The mitigating factors cited in the letters included the applicant’s lack of hatred towards China. The applicant also argued for a sentence reduction under NSL33. 14.Having considered the relevant sentencing principles, the trial judge pointed out that the offence in the present case was a premeditated act spanning 28 months which took place during a tumultuous time in society, and that HKIP’s advocacy, which distorted history and demonized China, had probably led to many people being called upon to use force to disrupt social order, and had even provided ammunition to critics on the international stage, enabling foreign politicians to criticize, boycott, and even suppress China and the HKSAR on the pretext of assisting Hong Kong. After full consideration of the number of platforms involved, the number of followers (about a thousand people followed), the number of people potentially influenced, the context of the incident, the content of the posts and the international implications involved, the trial judge found that the circumstances in the present case were of a serious nature and adopted a starting point of six and a half years’ imprisonment.[8] 15.The trial judge was of the view that apart from providing the mobile phone passcode upon police request, the applicant did not engage in any other substantive conduct that satisfied the criteria under NSL33. Furthermore, following his arrest, the applicant attempted to evade responsibility by claiming that he did not know the other accomplices and he failed to provide any information. Therefore, the trial judge refused to grant the applicant a sentence reduction by virtue of NSL33.[9] 16.The trial judge pointed out that none of the applicant’s personal background, circumstances or his achievements in music were valid mitigating factors.[10] Although the applicant pleaded guilty, which would normally have earned him a one-third sentencing discount,[11] the trial judge, having considered the sentencing ranges and the lower limit under NSL21, merely reduced the applicant’s sentence to one of 5 years’ imprisonment.[12] B. Grounds of Appeal 17.The applicant raised three grounds of appeal:
We shall now examine them one by one. C. Whether the tiered sentencing bands under NSL21 apply C1. The Principle of Convergence C1.1 Concerning the offence of conspiracy 18.At paragraph 19 of his written submissions, Mr. Randy Shek[13], for the applicant, submitted that the term “conspiracy” or its equivalent does not appear in NSL20 nor NSL21. By contrast, the term “conspires” is used in NSL29 and NSL30 regarding “collusion with a foreign country or with external elements to endanger national security”. This contrast demonstrated that the law drafters deliberately chose to exclude conspiracy offences from NSL20 and NSL21. At first glance, this paragraph could be read as excluding conspiracy offences from NSL20 and 21, which would follow that the relevant penalties do not apply. In his oral submissions, Mr Shek clarified that the meaning of this paragraph was not that conspiracy offences were excluded from NSL20 and NSL21, but merely that the relevant penalties did not apply. Mr Shek explicitly acknowledged that offences under the NSL may include those of conspiracy. 19.We are of the view that the question of whether conspiracy offences are excluded from NSL20 or NSL21 is an important legal issue that warrants a detailed explanation from a jurisprudential perspective to clarify the doubts or misunderstandings that may arise from paragraph 19 of the applicant’s written submissions. 20.NSL20 and NSL 21 read as follows:
Although neither of the Articles explicitly refer to conspiracy, this does not mean that the legislative intent was to exclude the offence of conspiracy. 21.According to the Court of Final Appeal’s interpretation of the NSL, the legislative intent was for the NSL to operate in tandem with the laws of the HKSAR, seeking convergence, compatibility, and complementarity with local laws; and in the event of inconsistencies, NSL provisions shall prevail under NSL 62: see HKSAR v Lai Chi-ying (2021) 24 HKCFAR 33, paragraphs 21 to 29. In other words, the NSL was intended to fit in and to function coherently with the HKSAR’s legal system, with local laws operating in normal fashion unless they are expressly or by necessary implication displaced by inconsistent provisions of the NSL: see HKSAR v Lui Sai-yu (2023) 26 HKCFAR 332, paragraph 25. As emphasized by the Court of Final Appeal, the convergence principle is reflected in various aspects of the NSL, such as Article 3(3),[14] Article 4,[15] Article 5,[16] Article 8,[17] Article 41(1),[18] Article 42(2),[19] and Article 45.[20] These provisions provide that the local laws continue to apply within the framework of the NSL, underscoring that the convergence principle mentioned above is a fundamental concept of the NSL. 22.In light of the above legislative intent of the NSL, the convergence, compatibility and complementarity between the NSL and the criminal laws of the HKSAR shall form a comprehensive criminal law mechanism to deal with crimes endangering national security under the NSL. Accordingly, although the offence of conspiracy is not expressly mentioned in the provisions of the NSL, the provisions on conspiracy under the local laws, namely section 159A of the Crimes Ordinance, and the relevant principles shall apply. In the event of inconsistencies with any provision(s) of the NSL, the relevant NSL provision(s) shall prevail. 23.In the present case, according to the convergence principle, although conspiracy is not expressly mentioned in either NSL20 or NSL21, section 159A of the Crimes Ordinance shall apply, making it an offence to conspire to incite others to commit the crimes under NSL20. C1.2 Sentencing for conspiracy offences 24.As to sentencing, the Court of Final Appeal said this in Lui Sai-yu:
After citing and interpreting NSL64,[21] the Court of Final Appeal stressed:
25.In the present case, the local sentencing provisions for conspiracy offences, namely section 159C of the Crimes Ordinance, and the relevant principles shall operate within the sentencing framework laid down under NSL21 to achieve convergence, compatibility and complementarity between the two. C2. How to achieve convergence 26.To understand how section 159C of the Crimes Ordinance and the relevant principles operate within the sentencing framework laid down under NSL21, it is necessary to first correctly comprehend both the effect of section 159C of the Crimes Ordinance and the legislative intent of the sentencing framework under NSL21, and then determine how the sentencing principles relating to section 159C of the Crimes Ordinance should operate within the sentencing framework under NSL21 to achieve convergence, compatibility and complementarity between the two. C2.1 The effect of section 159C of the Crimes Ordinance 27.Section 159C of the Crimes Ordinance expressly provides for the penalties for conspiracy offences:
28.Construed contextually, the meaning of section 159C is plain. Section 159C (1) provides that the penalty for a conspiracy offence shall be commensurate with the gravity of the “relevant offence.” Where the “relevant offence” is an offence, including murder, the sentence for which is mandatory life imprisonment, or an offence for which a sentence extending to imprisonment for life is provided, under section 159C(3), the person convicted shall be liable to imprisonment for life. In respect of any other offences punishable with imprisonment, section 159C(4) provides that the imprisonment term for a conspiracy offence shall not exceed the maximum term for the “relevant offence.” 29.The foregoing interpretation of section 159C is also consistent with its legislative purpose. Section 159C was added by the Crimes (Amendment) Bill 1995 to address the penalties for various conspiracy offences, with the fundamental principle of aligning the penalties for conspiracy offences with those for substantive offences: see paragraph 6(4) of the relevant Legislative Council Brief. The sentence for a substantive offence is subject to its maximum term, and at the same time, it must be proportionate to the culpability of the offender. Given that the legislative purpose of section 159C is to tie the penalties with those for substantive offences, any sentence imposed must satisfy the “maximum penalty requirement” and the “proportionality requirement.” 30.In short, regarding the sentencing for conspiracy to commit the “relevant offence”, section 159C sets out two criteria:
C2.2 The legislative purpose of NSL21 31.In Lui Sai-yu, the appellant contended that when properly construed, the prescribed sentencing bands under NSL21 only pertain to starting points, and the lower limits are not absolute. Therefore, having settled on the starting point within the prescribed band, the court may impose a sentence below the minimum sentence, giving full effect to applicable mitigating factors, including the appellant’s timely guilty plea. The Court of Final Appeal found this argument untenable. 32.The Court of Final Appeal first discussed the effect of NSL21 as follows:
33.The Court of Final Appeal then identified the two specified sentencing bands under NSL21, including the lower limits which are mandatory:
34.The Court of Final Appeal’s discussion on NSL33 also sheds light on the sentencing approach under the NSL:[22]
As to whether the three conditions under NSL33 are exhaustive, the Court of Final Appeal held that:
35.It is worth reiterating that in Lui Sai-yuatparagraphs58 and 65, the Court of Final Appeal emphasized that the NSL establishes a sentencing framework, including bands and ranges, that is tied to the seriousness of individual offences, which differs from the ordinary sentencing provisions under the local laws. 36.According to the analysis of the Court of Final Appeal, the legislative purpose of NSL21(2) is as follows:
37.In short, where NSL21(2) applies, the sentence shall be within the prescribed range of the applicable band and shall not fall below its lower limit, unless NSL33 applies. Otherwise, the sentence would be disproportionate to the gravity of the offence and run contrary to the legislative purpose of the Article. C2.3 How section 159C operates within the framework of NSL21 38.Where section 159C of the Crimes Ordinance applies under the NSL, the court is required to identify the specified “relevant offence” and the sentencing framework for that offence as prescribed by the NSL to determine a sentence that satisfies both the “proportionality requirement” and the “maximum penalty requirement.” 39.Regarding conspiracy to incite the commission of an offence contrary to NSL20, the “relevant offence” referenced in section 159C of the Crimes Ordinance is inciting the commission of an offence contrary to NSL20. With respect to this offence, NSL21(2) has already established the sentencing bands and ranges which are commensurate with the gravity of the offence and they are mandatory. In light of this, to satisfy the “proportionality requirement” and the “maximum penalty requirement”, the sentence for conspiracy to incite the commission of an offence contrary to NSL20 shall comply with the provisions of NSL21(2) and be within its prescribed sentencing framework, and it shall not fall below the lower limit of the applicable band, unless NSL33 applies. At the same time, the sentence shall not exceed the maximum penalty either. With section 159C of the Crimes Ordinance operating within the framework of NSL21 in this manner, it helps achieve convergence, compatibility and complementarity between the two. 40.The above sentencing principle also ensures that the sentence for conspiracy to incite the commission of an offence contrary to NSL20 aligns with the sentence for an offence of incitement under NSL21 and that for a conspiracy offence under NSL30:
C3. Grounds put forward by the applicant 41.Mr Shek’s main contention is that section 159C(4) makes no mention of minimum sentences, and that it is clear from the legislative materials that the legislative intent was solely to align the maximum sentences for conspiracy with those for substantive offences, without anything to do with minimum sentences. Furthermore, there is a remarkable difference between a maximum sentence and a mandatory sentence. Therefore, section 159C(4) was intended to give the court liberty to impose any penalty below the maximum sentence for an offence of a conspiratorial or abetting nature. In support of his contention, Mr. Shek cited a line of English Court of Appeal cases, [24] which stated that as far as the English Firearms Act 1968 was concerned, the statutory minimum sentence for possession of firearms was not binding on the offence of conspiracy to possess firearms, but served only as a significant reference point. 42.We find Mr. Shek’s contention untenable because:
43.In his oral submissions, Mr Shek claimed that the above principle of “convergence, compatibility, and complementarity”, in particular the point of “compatibility”, allows section 159C to operate in tandem with the provisions of NSL21. He specifically emphasized “in tandem with”, as though section 159C could be enforced outside the sentencing framework of NSL21. This is incorrect because the correct application of the convergence principle requires section 159C to operate within the sentencing framework of NSL21 to achieve convergence, compatibility, and complementarity between the two sets of provisions. 44.Finally, we note that in HKSAR v Choi Wing-kit [2023] 5 HKC 170 and HKSAR v Ng Gordon Ching-hang & 46 Others [2024] HKCFI 3298 respectively, the lower courts were of the view that the sentencing ranges, including the lower limits, for the “relevant offences” specified in section 159C of the Crimes Ordinance, as laid down in the NSL, were not mandatory but for reference only. However, the lower courts failed to thoroughly discuss or fully consider the convergence principle mentioned above or how section 159C of the Crimes Ordinance should operate within the relevant sentencing frameworks of the NSL. Based on the above discussions, we cannot agree with this viewpoint. D. Are the circumstances in the present case “of a serious nature” 45.The court’s determination of the seriousness of a case involves an assessment of the overall facts and the exercise of discretion. Regarding the offence of incitement under NSL21, the Court of Final Appeal in Lui Sai-yu at paragraph 71 affirmed the various factors set out by this Court in HKSAR v Ma Chun-man [2022] 5 HKLRD 246 at paragraphs 74 to 76 which served to help assess the seriousness of the offence of incitement. The factors include but are not limited to:
Although the applicant in the present case was charged with an offence of conspiracy, the circumstances of his offending were no different from those of an offence of incitement. Therefore, these factors likewise apply. 46.Having considered the overall circumstances of the case, we are of the view that the present case is “of a serious nature”. 47.First, the applicant committed the offence over a long period of 28 months, with obvious planning and premeditated acts. 48.Second, at the time of the offence, Hong Kong had just experienced a series of persistent and severe violent clashes and illegal acts stemming from the “Anti-Extradition Law Amendment Bill Movement”. The risks to national security and the rule of law remained very high. Against this background, the applicant still persisted in committing the offence continuously over a long period of time, thereby significantly exacerbating the potential risks of endangering national security and disrupting social order. 49.Third, the applicant utilized the internet to publish the posts in question to enhance the effect of incitement. All six online platforms involved in the case are social media widely used by members of the public who were the targets of incitement. The evidence also shows that the platforms in question had thousands of followers, not a small number indeed. 50.Mr Shek cited several defamation cases in support of his contention that members of the public only retain a fleeting impression of remarks made on the internet and social media. He seemed to be suggesting that using the internet to publish inciting remarks does not necessarily aggravate culpability. However, the issues involved in those civil cases concerned how online remarks should be interpreted from the perspective of a user and, as a result of which, whether such remarks constituted defamation or other civil wrongs. These issues are entirely different from those the court is required to consider in an offence of incitement. Moreover, the Court of Final Appeal and this Court have repeatedly pointed out that given the extensive reach of the internet, the abuse of social media to incite others to commit crimes does aggravate the offender’s culpability: see HKSAR v Chan Yau-hei (2014) 17 HKCFAR 110 at paragraph 89; Secretary for Justice v Yu Ka-kui [2020] HKCA 1019 at paragraph 28; and in Ma Chun-man at paragraph 83(4). Mr Shek’s contention is just untenable. 51.Fourth, the posts in question incited the use of various methods to achieve the purpose of the offence. Some of the posts advocated using violent means to overthrow the Chinese government and the SAR government. Some proposed substantive activities, such as launching an online crowdfunding campaign to raise “military funds” to achieve Hong Kong’s independence and organizing a demonstration outside the British Consulate General in Hong Kong. Some promoted initiating an online petition to the White House, demanding that the United States terminate the Hong Kong Policy Act and the Sino-British Joint Declaration, and that the United States and NATO send troops to occupy Hong Kong. In summary, the applicant advocated the use of violence, raised funds for the purpose of Hong Kong’s independence, and even promoted seeking help from foreign or external forces to achieve the goal of “the independence of Hong Kong”, thereby aggravating his culpability. 52.Mr Shek complained that the trial judge overlooked the fact that the plan of HKIP was fanciful and politically infeasible, and the concepts or actions advocated in the posts in question hardly attracted any interest. 53.However, the primary objective of the offence of incitement is to prevent crime. Generally speaking, whether the remarks in question have been put into practice and how the public have reacted to them are irrelevant; the offender’s culpability may remain considerably serious. Conversely, if the remarks in question had attracted many people’s attention, or even garnered support from a lot of people, his culpability would even be more serious: see Divin and McGinlay v HM Advocate [2013] JC 259 at paragraph 20; Ma Chun-manat paragraph 85(4). 54.Furthermore, when the applicant committed the offence, Hong Kong was facing very high risks to national security and the rule of law. He nevertheless persisted in promoting online the separation of Hong Kong from China by means of various social media platforms over a long period of time, and he also proposed certain substantive actions to advance the independence of Hong Kong. Notwithstanding the slim chances of success for part of the proposals, his overall culpability remained gravely serious. 55.Fifth, the applicant not only conspired with others, but already took certain substantive actions to incite others to commit secession. 56.Sixth, under the management of the applicant, the platforms in question not only failed to remove the previous posts after the NSL came into effect, they even proceeded with publishing 35 more posts to persistently carry out acts of incitement. That was blatant defiance of the law and it exacerbated the risks of stirring up secessionism and other unlawful acts. 57.We are of the view, having regard to the overall circumstances of the case, that the trial judge’s finding that the circumstances in the present case were “of a serious nature” is correct, and the starting point of six and a half years’ imprisonment he adopted was reasonable and not manifestly excessive. E. Whether the trial judge adequately considered the applicant’s role and culpability 58.Mr Shek urged that even in a case of conspiracy, the court is still required to consider the varying degrees of participation among the defendants to impose the appropriate sentence: for example, R v Cooke [2017] EWCA Crim 1272 at paragraph 15; HKSAR v Herry Jane Yusuph [2021] 1 HKLRD 290 at paragraph 70. However, the trial judge failed to consider or adequately consider the applicant’s personal culpability, particularly his account of his role under caution, which included: the media in question were jointly used by a number of people; he did not participate in setting up the domain names; he had no connection with the Facebook account of HKIP; the Twitter account of HKIP was set up seven years ago by someone he did not know and was jointly used by a number of people (the applicant only knew the cypher of one of them and had no information about the others); he had no connection with the Instagram account of HKIP; he was not involved in the management of the Telegram channel of HKIP and had no authority to delete or change any of its content; he joined the Telegram group of HKIP for casual conversations and was subsequently invited to become an administrator for the sole purpose of deleting advertisements and spam messages, and following up on the requests of other members. The name of the last medium was unrelated to the concept of Hong Kong’s independence; and he had lent his account to someone whose identity he had already forgotten. Mr. Shek argued that, in arriving at a finding without hearing the evidence, the court is required to impose a sentence based on the facts of the case most favourable to the applicant: see Sentencing in Hong Kong (11th Ed) §21-36. Therefore, the trial judge should have accepted the applicant’s account as mentioned above. 59.Mr. Shek complained that the trial judge erred in stating that “according to the laws of Hong Kong, his culpability, as a conspirator, is the same as that of the other co-conspirators” and that “as for the 42 posts, whether they were personally authored or uploaded by the defendant is irrelevant”, without considering the applicant’s role and his own culpability. 60.We find Mr. Shek’s arguments untenable for the following reasons:
F. Conclusion 61.Based on the discussions above, none of the applicant’s grounds of appeal are tenable. 62.We are of the view that having regard to the applicable sentencing principles and the overall circumstances of the case, the trial judge’s imposition of a sentence of five years’ imprisonment on the applicant is neither wrong in principle nor manifestly excessive. Accordingly, the applicant’s application for leave to appeal is refused.
Mr Randy Shek Shu-ming, Ms Yvonne Leung Lai-kwok, and Mr Wilson Yuen Ming-chak, instructed by Ho Kan Lawyers, for the applicant Mr Anthony CHAU Tin-hang, Deputy Director of Public Prosecutions, Ms Crystal Chan Wing-sum, Senior Public Prosecutor, and Mr Herman WAN Pui-hin, Public Prosecutor, for the respondent Translated by the Court Language Section of the Judiciary and vetted by Mr P Y Lo, Barrister-at-law. [1] The Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region, Promulgation of National Law 2020 (L.N. 136 of 2020). [2] Cap. 200, Laws of Hong Kong. [3] Reasons for Sentence [2024] HKDC 640, paragraph 43. [4] The following summary is extracted from the “Amended Summary of Facts (Guilty Plea)” dated 20 February 22024. [5] i.e. the United States-Hong Kong Policy Act, passed by the U.S. Congress in 1992, which granted the HKSAR treatment distinct from that accorded to China in areas such as trade, finance, and culture after the 1997 handover. [6] 1 was posted on HKIP’s website, 8 on its Facebook account, 13 on its Twitter account, 7 on its Instagram account, 4 on itsTelegram channel, and 9 on its Telegram group. [7] 1 was posted on the HKIP’s website, 5 on its Facebook account, 12 on its Twitter account, 5 on its Instagram account, 3 on its Telegram channel, and 9 on its Telegram group. [8] Reasons for Sentence, paragraphs 27-33. [9] Reasons for Sentence, paragraphs 34-40. [10] Reasons for Sentence, paragraphs 41-42. [11] 78 months reduced by one-third, i.e. 52 months. [12] Reasons for Sentence, paragraph 43. [13] Appearing with Ms Yvonne Leung Lai-kwok and Mr Wilson Yuen Ming-chak. [14] “The executive authorities, legislature and judiciary of the HKSAR shall effectively prevent, suppress, and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.” [15] “Human rights shall be respected and protected in safeguarding national security in the HKSAR. The rights and freedoms, including the freedoms of speech, of the press, of publication, of association, of assembly, of procession and of demonstration, which the residents of the Region enjoy under the Basic Law of the HKSAR and the provisions of the International Covenant on Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights as applied to Hong Kong, shall be protected in accordance with the law.” [16] “The principle of the rule of law shall be adhered to in preventing, suppressing, and imposing punishment for offences endangering national security. A person who commits an act which constitutes an offence under the law shall be convicted and punished in accordance with the law. No one shall be convicted and punished for an act which does not constitute an offence under the law. A person is presumed innocent until convicted by a judicial body. The right to defend himself or herself and other rights in judicial proceedings that a criminal suspect, defendant, and other parties in judicial proceedings are entitled to under the law shall be protected. No one shall be liable to be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in judicial proceedings.” [17] “In order to safeguard national security effectively, the law enforcement and judicial authorities of the HKSAR shall fully enforce this Law and the laws in force in the Region concerning the prevention of, suppression of, and imposition of punishment for acts and activities endangering national security.” [18] “This Law and the laws of the HKSAR shall apply to procedural matters, including those related to criminal investigation, prosecution, trial and execution of penalty, in respect of cases concerning offence endangering national security over which the Region exercises jurisdiction.” [19] “No bail shall be granted to a criminal suspect or defendant unless the judge has sufficient grounds for believing that the criminal suspect or defendant will not continue to commit acts endangering national security.” [20] “Unless otherwise provided by this Law, magistrates’ courts, the District Court, the High Court and the Court of the Final Appeal shall handle proceedings in relation to the prosecution for offences endangering national security in accordance with the laws of the HKSAR.” [21] NSL64 provides: “In the application of this Law in the Hong Kong Special Administrative Region, the terms “fixed-term imprisonment”, “life imprisonment”, “confiscation of property” and “criminal fine” in this Law respectively mean “imprisonment”, “imprisonment for life”, “confiscation of proceeds of crime” and “fine”; “short-term detention” shall be construed, withreference to the relevant laws of the Region, as “imprisonment”, “detention in a detention centre” or “detention in a training centre”; “restriction” shall be construed, with reference to the relevant laws of the Region, as “community service” or “detention in a reformatory school”; and “revoke licence or business permit” means “revoke registration or exemption from registration, or revoke licence” as provided for in the relevant laws of the Region.” [22] NSL33 provides: “A lighter penalty may be imposed, or the penalty may be reduced or, in the case of a minor offence, exempted, if an offender, criminal suspect, or defendant:
[23] NSL30 provides: “A person who conspires with or directly or indirectly receives instructions, control, funding or other kinds of support from a foreign country or an institution, organization, or individual outside the mainland, Hong Kong, and Macao of the People’s Republic of China to commit the offences under Article 20 or 22 of this Law shall be liable to a more severe penalty in accordance with the provisions therein respectively.” [24] R v Sajid Khan, Mohammed Rasab [2007] EWCA Crim 687; AG Reference Nos 48 and 49 of 2010 [2011] 1 Cr App R (S) 122; R v Tawana Blake [2017] EWCA Crim 1378; R v Thomas Zachary Parish & Anor [2017] EWCA 2064 (Crim); R v Nile Cecil Johnson & Anor [2019] EWCA Crim 171; R v Kyle Etsy and Ors [2020] EWCA Crim 830; R v Ian James Wharmby & Ors [2023] EWCA Crim 801. [25] Reasons for Sentence, paragraphs 14, 17-18, 20-22, 26 and 37. [26] Reasons for Sentence, paragraph 37. |
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