DCCC265/2022

DCCC265/2022

A A B [English Translation – 英 譯 本 ] B C DCCC 265/2022 C [2024] HKDC 1430 D D IN THE DISTRICT COURT OF THE E E HONG KONG SPECIAL ADMINISTRATIVE REGION F CRIMINAL CASE NO. 265 OF 2022 F ____________________ G G HKSAR H H v I Best Pencil (Hong Kong) Limited (D1) I CHUNG Pui-kuen (D2) J J LAM Shiu-tung (D3) K ____________________ K L Before: His Honour Judge W.K. Kwok L Date: 29 August 2024 M M Present: Ms Laura Ng, Senior Assistant Director of Public N N Prosecutions, leading Ms Jennifer Tsui, Senior Public Prosecutor, for HKSAR O O st 1 defendant (D1), unrepresented, absent P P Ms Audrey Eu, Senior Counsel, leading Mr David Q Ma, Mr Jay Koon, Ms Allison Wong and Ms Denise Q Or, instructed by Messrs Ho Tse Wai & Partners, for R R the 2nd defendant (D2) and the 3rd defendant (D3) S Offence: Conspiracy to publish and/or reproduce seditious S publications T T U U V V  - 2 - A A B B ____________________ C C Reasons for Verdict D ____________________ D E E Index Paras F A. Background 1-4 F B. Trial in absentia of D1 5-18 G G C. The defence objection to being prosecuted on some of 19-25 H H the articles I I (Reasons for dismissal of the defence objection) 26-30 J D. The defence application for a permanent stay of 31-43 J proceedings K K (Reasons for dismissal of the defence application) 44-48 L E. The prosecution case L E1. Overview of prosecution witnesses 49-71 M M E2. Context of the relevant time period 72 N E3. Contents of the articles 73-77 N E4. Mens rea 78-90 O O E5. Conspiracy agreement and intention to put it into 91-94 P effect P F. The defence case 95-97 Q Q (D2 only admitted approving the publication of 98-99 R R A1 to A15) S (The articles had no seditious intention) 100-104 S (The articles did not constitute real risks to 105-106 T T national security) U U V V  - 3 - A A B B Index Paras C (Media’s responsibility, not a political platform, 107-110 C no seditious intention) D D (Publications other than the 17 articles) 111-113 E (Objection to documents submitted by the 114-124 E prosecution for use in cross-examination) F F (D2’s evidence under cross-examination) 125-128 G (No evidence of conspiracy) 129-133 G G. Verdict H H G1. Legal directions 134-142 I G2. Trial issues 143-144 I G3. Constitutional and legal issues 145-151 J J (Constitutional and legal arguments raised by 152-154 K the defence) K (Proper application of section 9(1)) 155-160 L L (Section 9(2) not applicable where the intention is 161-164 M to seriously undermine government authority) M (Whether an intention to incite public disturbance 165-174 N N or disorder is an element of the offence) O (Real risks to national security) 175-176 O P (Publisher must have a specific intent or must be 177-183 P reckless about the consequences) Q Q (Operational proportionality) 184-195 R G4. No unfairness in the trial 196-201 R G5. Articles with seditious intentions S S G5.1 Findings on the context of the relevant time 202-206 T period T U U V V  - 4 - A A B B Index Paras C (HKU Public Opinion Poll Results in June 2019) 207 C (CUHK Public Opinion Polling Report: situation 208-219 D D between June and December 2019) E (i) Characteristics of the 6.12 protesters 220-223 E (ii) Localist political demands 224-226 F F (iii) Acceptance of radical protesters by citizens 227-230 G and unity between peaceful and militant G protesters H H (2019 District Council Election) 231 I (Political demands shifting to political reform) 232 I (Number of participants in the protests between 233 J J June 2019 and May 2020) K (The paralysis of the Legislative Council) 234 K (The collapse of the traditional corrective forces 235 L L in social relations) M (35+ Primary Election of the pro-democracy 236 M camp) N N (The age of rumours/unwillingness to find the 237-239 O truth) O (Broadcasting and media platforms available to 240-244 P P the government) Q (Digital media usage) 245 Q R (The influential power of Stand News) 246-247 R (The dispute on whether society had returned to 248-253 S S normal) T T U U V V  - 5 - A A B B Index Paras C (Hong Kong people’s trust in the Central 254-267 C Government) D D G5.2 Considerations on articles A1 to A17 268 E (A1 profile interview) 269-279 E (A2 profile interview) 280-283 F F (A3 profile interview) 284-290 G (A4 blog post) 291-299 G (A5 blog post) 300-303 H H (A6 profile interview) 304-310 I (A7 blog post) 311-316 I (A8 profile interview) 317-320 J J (A9 profile interview) 321-327 K (A10 blog post) 328-331 K (A11 blog post) 332-336 L L (A12 blog post) 337-351 M (A13 blog post) 352-355 M (A14 blog post) 356-358 N N (A15 blog post) 359-362 O O (A16 profile interview) 363-380 P (A17 news report) 381 P (Comments on social media platforms) 382-383 Q Q G6. Mens rea of the defendants 384-397 R (Trust Arrangement and Launch Statement) 398-452 R (Stand News editorial “Why we ‘target’ the 453-461 S S police” (14 June 2019)) T T U U V V  - 6 - A A B B Index Paras C (Stand News editorial “Attacks on journalists are 462-469 C a big deal Collapse of the system is a bigger D D deal” (23 July 2019)) E (Stand News editorial “Hold fast to every inch of 470-476 E free soil Use every glimmer of light making its F F way through tiny crevices” (dated 1 July 2020)) G (Featured discussion at the summit for online 477-478 G media on 14 December 2019) H H (News Stand) 479-484 I (The line taken by Stand News) 485 I J (Whether there was mens rea in publishing the 486-488 J articles) K K G7. Conspiratorial agreement existed between the 489-492 L defendants L G8. Conviction 493 M M N A. Background N O O 1. The three defendants in this case were jointly charged with P one count of conspiracy to publish and/or reproduce seditious publications, P contrary to sections 10(1)(c), 159A and 159C of the Crimes Ordinance 1. Q Q R 2. The first defendant, Best Pencil (Hong Kong) Limited (D1), R was a limited company set up in Hong Kong2. It was also the registered S S 1 T Chapter 200 of the Laws of Hong Kong T 2 Paragraph 1 of the Admitted Facts (Exhibit P1) U U V V  - 7 - A A B proprietor, printer and publisher of Stand News, an online media 3, under B C the Registration of Local Newspapers Ordinance4. The second defendant, C Chung Pui-kuen (D2), was employed by D1 as the Chief Editor of Stand D D News from December 2014 onward5. The third defendant, Lam Siu-tung E (D3), similarly, was employed by D1 from December 2014 onward as a E reporter of Stand News and was promoted to Deputy Editor on 1 December F F 2019. After the resignation of D2 on 1 November 2021, D3 was promoted G to Acting Chief Editor and took up the duties of the Chief Editor6. G H H 3. The particulars of offence charged against the three I defendants were that they: I J J “Between the 7th day of July, 2020 and the 29th day of December, 2021, both dates inclusive, conspired together and K K with other persons, to publish and/or reproduce seditious L publications, namely publications having an intention: - L M (a) to bring into hatred or contempt or to excite disaffection M against, the Central Authorities or the Government of the N N Hong Kong Special Administrative Region; O O (b) to excite inhabitants of Hong Kong to attempt to procure P the alteration, otherwise than by lawful means, of any P other matter in Hong Kong as by law established; Q Q R R 3 S Paragraph 11 of the Admitted Facts admitted by both parties (Exhibit P1) S 4 Chapter 268 of the Laws of Hong Kong 5 T Paragraphs 28-30 of the Admitted Facts (Exhibit P1) T 6 Paragraphs 28-30 of the Admitted Facts (Exhibit P1) U U V V  - 8 - A A B (c) to bring into hatred or contempt or to excite disaffection B against the administration of justice in Hong Kong; C C (d) to raise discontent or disaffection amongst inhabitants of D D Hong Kong; E E (e) to incite persons to violence; and/or F F (f) to counsel disobedience to law or to any lawful order.” G G H 4. The prosecution relied on 17 articles (articles A1 to A17) as H the prosecution basis. They alleged that there was seditious intention in the I I contents of each of these articles, which were published by Stand News as J operated by D1, on its website and social media pages7. The prosecution J alleged that D2, being one of D1’s directing minds and wills, and serving K K as the Chief Editor of Stand News, had knowledge of the seditious intention L of the articles, and their publication was effected upon his decision, L approval, arrangement and/or with his assistance. The prosecution also M M claimed that, as shown by the evidence, another directing mind and will, N as well as the ultimate boss in D1, was Tsoi Tung-ho (“Tsoi”) who was its N director. D3 knowingly assisted D2. At a later stage, he even served as the O O Acting Chief Editor of Stand News in performing the same duties as D2 as P described above. The prosecution suggested that an inference could be P drawn that there was a conspiracy between the three defendants to publish Q Q seditious publications. In an operation conducted on 29 December 2021, R D1’s office was searched, and D2 and D3 arrested on the same day. Tsoi R S S T 7 Including pages of Stand News on social media platforms such as Facebook, Instagram, YouTube, T Twitter and Telegram (Admitted Facts (Exhibit P1) paragraph 23) U U V V  - 9 - A A B B left Hong Kong on 17 November 2019, and the Immigration Department C had no record of his return to Hong Kong. C D D B. Trial in absentia of D1 E E 5. D1 did not appoint any of its directors, shareholders or legal F F representatives to attend any hearing. On the other hand, D2 and D3 G pleaded not guilty to the charge and stood trial. G H 6. The prosecution made an application to proceed with D1’s H I trial in his absence, to be conducted concurrently with the trial of D2 and I D3. In support of this application, the prosecution submitted two affidavits J J dated 29 April 2022 and 20 June 2022 by Senior Inspector Mr Kwan Pok- K hang, the officer-in-charge of the case, as factual evidence of the service of K documents on D1 for his court attendance. L L M 7. The evidence of Senior Inspector Kwan proved that police M officers went to D1’s registered office on 30 December 2021, 18 February N N 2022 and 6 April 2022 respectively, to leave the Notices of Hearings in O order to notify D1 to attend the hearings at the West Kowloon Magistrates’ O Courts on 30 December 2021, 25 February 2022 and 13 April 2022, and P P that on the same dates, the same documents were also delivered to the post Q box of the registered address of Tsoi, D1’s then sole director. Later, on 12 Q April 2022, police officers went to the registered office of D1 and left a R R folder of documents for the transfer of the case to the District Court. D1 S did not appoint any representatives to attend any of the hearings in the S Magistrates’ Courts. On 13 April 2022, the prosecution made an T T application to proceed with the proceedings against D1. After hearing the U U V V  - 10 - A A B B evidence of Detective Police Constable 18083, Principle Magistrate Peter C Law was satisfied that the Notices of Hearings and other relevant C documents had been served on D1, and that D1 was aware of the time for D D its appearance in court attendance, but chose not to attend the hearings, E abandoning its right to participate in the trial. Principle Magistrate Law E ordered the case to be transferred to the District Court. F F G 8. The evidence of Inspector Kwan also proved that for the G purpose of notifying D1 of the required attendance at the District Court H hearings on 3 May and 23 June 2022, police officers went to D1’s H I registered office to leave the Notices of Hearings on 15 April 2022 and 31 I May 2022 respectively, and served the Notices of Hearing at the post box J J at Tsoi’s registered address on the same dates. Both of these hearings were K handled by me and D1 was absent on each occasion. On each occasion, I K accepted the evidence of Inspector Kwan and ruled that under section 827 L L of the Companies Ordinance8, the hearing could proceed in the absence of M D1 as all the relevant documents had been served on D1 and D1 had been M informed of the time of attendance. At the hearing on 31 May 2022 before N N me, the trial of the three defendants was set down to be heard on 31 October O 2022, with 20 days reserved and a pre-trial review was arranged for 6 O September 2022. P P Q 9. The pre-trial review on 6 September 2022 was heard by Her Q Honour Judge A Tse. D1 was absent from the hearing. The prosecution R R submitted the third affidavit by Senior Inspector Kwan as evidence of the S S T T 8 Chapter 622 of the Laws of Hong Kong U U V V  - 11 - A A B B service of the Notice of Hearing for notifying D1 of its required court C attendance. C D D 10. When the trial of this case commenced on 31 October 2022, E D1 had still failed to appoint any representative to attend court. The E prosecution submitted that it was not appropriate to sever D1’s trial. F F G 11. In considering whether a trial should be conducted in the G absence of D1, I bear in mind the legal principles set out by the Court of H H Appeal in HKSAR v KWAN Wai-keung & Others (CACC 259/2011), at I paragraph 6: I J J “In R v. Jones [2003] 1 AC 1, Lord Bingham enunciated the principles on the judicial discretion to adjourn or continue with K K a trial in the absence of a defendant. This Court agrees and adopts L these principles. L M (1) First of all, a defendant has the right to be present at the M trial to face the charges. N N (2) When a defendant is absent for any reasons, such as O O illness, misbehaviour, or deliberately absconded, the P court has the discretion to decide whether to continue P with the trial or adjourn it. Q Q (3) It is a discretion to be exercised with great caution and R R with close regard to the overall fairness of the proceedings. S S T (4) A defendant afflicted by illness or incapacity will have a T much stronger ground for resisting the continuance of the U U V V  - 12 - A A B trial in his absence than one who has deliberately chosen B to abscond. C C (5) If a defendant of full age and sound mind, with full D D knowledge of a forthcoming trial, deliberately absents E himself, his behaviour will not have the automatic effect E of suspending the criminal proceedings against him until F F such time, if ever, as he chooses to surrender himself or is apprehended. G G H (6) If the trial continues in the absence of the defendant, the H defendant may be unrepresented, may be unable to cross- I examine prosecution witnesses and give a full account of I his defence. However, a defendant who deliberately J J chooses to abscond and absents himself cannot impugn the fairness of the trial on these grounds. K K L (7) In a case with multiple defendants, if the court has no L discretion to begin the trial against that defendant in his M absence, it faces an acute dilemma: either the whole trial M must be delayed until the absent defendant is N N apprehended, an event which may cause real anguish to witnesses and victims; or the trial must be commenced O O against the defendants who appear but not the defendant P who has absconded. This may confer a wholly unjustified P advantage on that defendant.” Q Q 12. As a company limited by shares incorporated in Hong Kong, R R D1 was a legal entity. It may appoint its directors or legal representatives S to appear in court. According to the evidence of Senior Inspector Kwan, S except for Tsoi, all those who had been directors of D1 had resigned by 29 T T December 2021. As at 13 April 2022, Tsoi remained the sole director of U U V V  - 13 - A A B B D1 and there was no company secretary. Tsoi did not return to Hong Kong C after his departure on 17 November 2019. Nevertheless, I find that Tsoi C must have been aware of the arrest of D2 and D3 by the police on 29 D D December 2021 as Stand News had issued a statement for the immediate E suspension of operation when the two were still being detained by the E police. Undoubtedly, that decision could only have come from the top F F management of Stand News, and this person must have been Tsoi. I am G sure that the progress of this case must have been of concern to Tsoi even G if he was outside Hong Kong. Moreover, all Notices of Hearing have been H served to the post box of Tsoi’s registered address. H I I 13. At the material time, D2 and D3 performed the duties of the J J Chief Editor in Stand News in succession. As they pleaded not guilty to the K charge, the defence must be that the articles published in Stand News were K not seditious publications, and/or that the two did not possess any seditious L L intention, and/or that a conspiracy did not exist as all the publications were M the result of individual decisions. There is no doubt that no conflict of M interest exists between the case and defence of D1 and those of the other N N two defendants; indeed, at the time of the offence, D2 and D3 were O employed by D1. As such, Tsoi could have appointed D2 and/or D3 to be O the representative at the trial on D1’s behalf. Although it was not P P incumbent upon D2 and D3 to do so, a significant amount of hearing time Q would have been saved had D1 been represented by either one of them as Q it would not have been necessary for the prosecution to call multiple R R witnesses to prove the facts admitted by D2 and D3 under section 65C of S the Criminal Procedure Ordinance 9 in order to discharge the burden of S T T 9 Chapter 221 of the Laws of Hong Kong U U V V  - 14 - A A B B strict proof against D1. I find that, for whatever reason, Tsoi made the C decision of his own accord and voluntarily chose not to attend the hearing C as a representative of D1, or to appoint any reliable and competent person D D to represent D1 at the hearing. E E 14. Moreover, even if I were to adjourn D1’s trial, I would have F F no reason to believe that D1 would seize the opportunity provided by the G adjournment to appoint a representative for court attendance. G H H 15. Furthermore, according to the evidence of Senior Inspector I Kwan, the office of Stand News, namely the registered office of D1, was I to be put on sale by its owner on 19 September 2022. In other words, D1 J J would have no registered office for receiving Notices of Hearing and other K documents after that date. Therefore, adjourning D1’s trial would only K create difficulties in giving D1 further notice to appear in court. L L M 16. In any event, all the relevant Notices of Hearings and M documents had been served on D1, but D1, by choosing not to send a N N representative to attend the court hearings, on its own motion abandoned O its right to participate in the trial. On the other hand, as D2 and D3 were O represented by a legal team led by Ms Eu SC, D1 could also benefit from P P this. This is because if D2 and/or D3 were found not guilty, it would Q essentially be impossible for D1 to be convicted. Therefore, even if the trial Q is held in absentia, I do not see that D1’s interests would be prejudiced. R R S 17. For these reasons, I exercised my discretion to grant the S prosecution’s application and allowed the prosecution to adduce evidence T T in the absence of D1. U U V V  - 15 - A A B B C 18. As D1 was absent from the trial, I entered a plea of not guilty C for D1. I bore in mind that the abandonment of D1’s right to participate in D D the trial should have no bearing on the guilt of D1 and that no adverse E inference should be drawn against D1. D1 should not be convicted unless E the prosecution has discharged the burden of strict proof and proved their F F case. G G C. The defence objection to being prosecuted on some of the articles H H I 19. Information of the 17 articles which form the prosecution I basis, such as the dates of publication, can be tabulated as follows: J J K Public Publication Title Interviewee/ Publication Last day of Estimated K ation Blogger* Date publication Number of (as from days of L L when it was publication discovered M by the police) M A1 [Legislative Council Ho Kwai- 7.7.2020 29.12.2021 540 N Election] Interview - After lam N her press card was removed, is there anyone O else going with her? O A2 [Interview] From “no one Chow Ka- 27.7.2020 13.7.2021 351 P knows you” to winning in shing P the New East Primary Q Election - Chow Ka-shing: Q Prove that localist ideas can win! R R A3 [Interview] Still got DQ’d Leung 12.8.2020 13.7.2021 335 even singing “Love the Fong-wai S Basic Law”, Leung Fong- Fergus S wai Fergus: Maybe days as T DC member would not be T long. U U V V  - 16 - A A B B Public Publication Title Interviewee/ Publication Last day of Estimated ation Blogger* Date publication Number of C (as from days of C when it was publication discovered D D by the police) E A4 [Blog Post] This week’s Chan Pui- 12.9.2020 24.6.2021 285 E questions on general man* knowledge for Hong Kong F people F A5 [Blog Post] In the New Law Kwun- 20.9.2020 24.6.2021 277 G Normal Under the chung * G National Security Law H (“NSL”), How Should We H Resist and Think? I A6 [London Interview] Law Law Kwun- 9.12.2020 25.6.2021 198 I Kwun-chung, an exile, chung starts a new battle with J guilt. J A7 [Blog Post] Being strong Law Kwun- 13.12.2020 25.6.2021 194 K in troubled times: Troughs, chung * K darkness and hope. L L A8 [Interview] Exile with his Hui Chi- 14.12.2020 25.6.2021 193 whole family Hui Chi- fung M fung: When his nearest and M dearest are safe beside him, he can with peace of N mind declare a full-scale N war on the regime. O A9 [Interview] Exile in the Leung 15.12.2020 25.6.2021 192 O US: Vow to fight for Chung-hang P financial sanctions, Sixtus P lifeboat programme Leung Chung-hang Sixtus: Hope Q to return to a Hong Kong Q which belongs to Hong Kong people. R R A10 [Blog post] In response to Cheung 28.12.2020 25.6.2021 179 S those being wanted under Kwan- S NSL: History isn’t left yang* blank: The Truth Lives On. T T U U V V  - 17 - A A B B Public Publication Title Interviewee/ Publication Last day of Estimated ation Blogger* Date publication Number of C (as from days of C when it was publication discovered D D by the police) E A11 [Blog Post] 2020 Hong Allan Au 29.12.2020 24.6.2021 177 E Kong New Words Ka-lun* F F A12 [Blog post] Wearing official Allan Au 22.2.2021 24.6.2021 122 robes and a wig for a bad Ka-lun * G show. G A13 [Blog Post] Hong Kong - Law Kwun- 2.3.2021 25.6.2021 115 H H Belle Isle chung * I A14 [Blog Post] “Sedition” as a Allan Au 1.6.2021 29.12.2021 211 I Legal Weapon Ka-lun* J A15 [Blog Post] Disaster Scene Allan Au 22.6.2021 29.12.2021 190 J Ka-lun* K A16 [Interview] “Two Years of Self- 11.11.2021 29.12.2021 48 K conflicts at CUHK”: claimed Graduates commemorate CUHK L L walking to protect the Alumni school mourn the loss of M humanistic spirit in the M mountain city. N A17 Chow Hang-tung was Chow 5.12.2021 29.12.2021 24 N awarded “the Hang-tung Distinguished Person for O O Advancing Democracy in China Award”: P Everything that happened P in Hong Kong was a warning to the world. Q Q R 20. On the first day of trial10, the defence objected to D2 and D3 R being prosecuted on 13 of the 17 articles listed above (namely, A2 to A13). S S T T 10 31st October 2022 U U V V  - 18 - A A B B 21. The defence argued that section 159D(1) of the Crimes C Ordinance imposes restrictions on the prosecution: if the time limit for C prosecuting an offence has expired, a charge of conspiracy to commit the D D offence cannot be laid under section 159A(1). In the present case, in respect E of the offence under section 10(1)(c), section 11(1) requires that the E prosecution must be brought within six months of the commission of the F F offence. Therefore, if no prosecution was instituted within 6 months of the G publication of the seditious publications, no prosecution could be instituted G against a conspiracy to publish a seditious publication. H H I 22. The defence argued that, as the prosecution charged the three I defendants on 29 December 2021, under section 11(1), the defendants J J could only be prosecuted in respect of articles published within six months K prior to that date (i.e. articles published after 29 June 2021). The defence K also argued that, since Stand News removed articles A2 to A13 from its L L website11 following the public notice issued on 27 June 202112, more than M 6 months had elapsed by 29 December 2021. Thus the time limit had M expired, and the prosecution could not lay prosecution in respect of the N N publication of A2 to A13, and was also barred by section 159D(1) from O prosecuting for the offence of conspiracy to publish seditious publications. O The court should not and does not have jurisdiction to deal with such a P P matter, and the evidence concerned is not admissible. Q Q R R 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 S S 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 T preliminary issues dated 20 September 2022) T U U V V  - 19 - A A B B 23. The prosecution did not dispute that A4 to A13 were removed C more than six months before 29 December 2021 (i.e. before 29 June 2021), C but points to the evidence that after 29 June 2021, A1 to A3 and A14 to D D A17 could still be found on the website of Stand News. E E 24. In any event, the prosecution alleged that the conspiracy F F charge faced by the three defendants involved a continuous offence, i.e. the G three defendants had agreed with each other and with other persons to G publish seditious articles in Stand News continuously. For a continuous H H offence, the time limit for prosecution does not start to run until after the I period of the offence has ended. In this case, the agreement of conspiracy I to publish seditious publications ended when it was stopped on 29 J J December 2021, so the time limit for prosecution was 6 months after 29 K December 2021 (i.e. 29 June 2022), and since the prosecution had already K charged the three defendants on 30 December 2021, it was not out of time. L L M 25. As regards the restriction in section 159D(1), the prosecution M pointed out that the conspiratorial agreement as referred to in the present N N charge was not the publication of A4 to A13, but the continuing publication O of seditious articles in Stand News. A1 to A17, including A4 to A13, were O the overt acts of the conspiratorial agreement in this case. Therefore, P P although A4 to A13 had already been removed more than six months Q before 29 December 2021, the restriction in section 159D(1) does not Q prevent the prosecution from using the publication of A1 to A17 to prove R R the conspiratorial agreement alleged in the offence. S S (Reasons for dismissal of the defence objection) T T U U V V  - 20 - A A B B 26. HKSAR v Lai Chee Ying [2023] HKCFI 3337 was also about C conspiracy to commit the offence of publishing seditious publications C under section 10 of the Crimes Ordinance. In paragraph 35 of the judgment, D D the Court of First Instance held that a conspiracy to commit a one-off E offence was different from a conspiracy to commit multiple breaches of E section 10, and in paragraph 42 of the judgment, it was held that the time F F limit for the latter offence did not start to run until the last day of the charge: G G “35. ...we are unable to accept Mr Pang’s argument that a H conspiracy is “consummated” upon the commission of the first H substantive offence in pursuance to the conspiracy (“the first offence”). The situation may be different if the conspiratorial I agreement was about the commission of only a one-off offence. I However, as we understand it the prosecution in the present case alleges that the defendants conspired to commit more than one J J act in violation of s.10, CO. If the prosecution’s case were true, then the Sedition Charge would not have been “stale” after the K commission of “the first offence”, as the conspiratorial K agreement would still be very much alive. L 42. In our judgement, in the circumstances of this case the L limitation of time should start to run on 24 June 2021 the last M date of the charge, so that the prosecution of the defendants M would be time-barred after 24 December 2021.” N N 27. I am of the view that the allegation in this case also involves O a conspiracy to commit multiple and successive breaches of section 10, and O so I accept the prosecution’s argument that the time limit for prosecution P P does not start to run until the period of the offence has ended. The Q prosecution in this case was therefore not brought out of time. Q R R 28. As regards section 159D(1)’s restriction on prosecution, the S provision is as follows: S T T “159D. Restriction on the institution of proceedings U U V V  - 21 - A A B B (1) Where -- C C (a) an offence has been committed in pursuance of any agreement; and D D (b) proceedings may not be instituted for that offence because any time limit applicable to the institution of any E E such proceedings has expired, F proceedings under section 159A for conspiracy to F commit that offence shall not be instituted against any person on the basis of that agreement.” G G H 29. I am of the view that the objective of section 159D(1) is to H prevent the prosecution from making use of a conspiracy charge for an I I offence for which the time limit for prosecution has expired. Conspiracies J subject to the restriction are limited to agreements to commit offences for J which the time limit has expired, but not other conspiratorial agreements K K with different contents, for otherwise it would be inconsistent with the L objective. In this case, the evidence showed that A4 to A13 had been L removed after 27 June 2021 and were not published again; the prosecution M M would have been restricted by section 159D(1) from prosecuting on a N conspiracy to publish A4 to A13 after the expiration of six months. Section N 159D(1) does not, however, restrict prosecution for other conspiratorial O O agreements with different contents. P P 30. The content of the conspiratorial agreement alleged in this Q Q case was the continuing publication of seditious articles in Stand News, R which is distinct from a conspiracy to publish A4 to A13. Even if A4 to R A13 had been published beyond the 6-month period prior to 29 December S S 2021, section 159D(1) does not restrict the institution of prosecution of the T conspiratorial agreement alleged in the offence of this case. I also agree T that the publications of A1 to A17 were only the overt acts of the U U V V  - 22 - A A B B conspiratorial agreement in this case which could be used to prove the C agreement in question. It is therefore held that the prosecution can adduce C evidence in respect of all 17 articles from A1 to A17. D D E D. The defence application for a permanent stay of proceedings E F F 31. On Day 3 of the trial13, Detective Police Constable 15186, the G second prosecution witness (PW2), testified that from 24 June to 13 July G 2021, he had downloaded articles A1 to A15 from the website of Stand H H News upon the instruction of his supervisor. Under cross-examination, I PW2 disclosed for the first time that, other than the 30 articles already I disclosed by the prosecution, there were hundreds of other articles J J downloaded as per the instruction of his superior which had not been K disclosed. The prosecution team, including the police case investigation K team (“Case Team”), stated that they had been unaware of this non- L L disclosure. Having been apprised of the situation, the prosecution made M further disclosure of documents to the defence on the 5th day of trial 14. M Together with the 30 articles disclosed earlier, a total of 587 articles N N downloaded from the website of Stand News were disclosed by the O prosecution to the defence. O P P 32. The above developments in relation to disclosure led to an Q application by the defence for a permanent stay of proceedings. I dealt with Q the application as a special issue by way of alternative procedure. R R S S T T 13 3 November 2022 14 7 November 2022 U U V V  - 23 - A A B B 33. The fifth and sixth prosecution witnesses, Senior Inspector Lo C Kin-yin (PW5) and Chief Inspector Chan On-ming (PW6), gave evidence C and explained that PW2 was attached to sub-unit Y1 which was originally D D responsible in this case for tasks including intelligence gathering and E collecting online evidence. As the officers in charge of sub-unit Y1, PW5 E and PW6 had obtained intelligence on 22 June 2021 that Stand News would F F take down suspected unlawful articles within a short period of time; PW5 G and PW6 then started to review a large number of articles on the website G of Stand News and selected 553 and 34 articles on 22 June and 13 July H H respectively, making a total of 587 articles with sensitive contents, which I were downloaded and kept by PW2. After several meetings between PW5 I and PW6, about 100 articles were selected from the 587 articles. After yet J J more meetings with PW6’s supervisor (Superintendent Wong C.H.), 30 K articles were further selected and handed over to the Case Team for K handling. L L M 34. The prosecution also called prosecution witnesses 7 to 9 (PW7 M to PW9) to give evidence. N N O 35. Mr Law, PW7, was then the Technology Development O Manager of UDomain Company. According to his evidence, Stand News P P registered its domain name with his company and rented cloud services Q from 2015 to August 2020. In September 2020, Stand News switched to Q Google for cloud server services. R R S 36. PW8, Senior Constable 193, was a police officer who had S examined the electronic equipment. He testified that the arrest and search T T operation on 29 December 2021 did not result in the closing down of the U U V V  - 24 - A A B B Stand News website. The exhibits examined by the police did not include C the web server of the Stand News website. After the digital exhibits had C been seized from the Stand News office, the Stand News website could still D D be browsed as usual. E E 37. Sergeant 3156, PW9, was the officer responsible for issuing F F notices to D2 and D3 for taking down part of the publications in question. G During the arrest operation, he had requested Stand News to take down G articles A1, A14 to A17 and had given notices to D2 and D3 who had H H acknowledged receipt. At about 1:30 pm on the same day, someone who I claimed to be a representative of Stand News called him and told him that I the articles had been removed. He confirmed that the links to those articles J J were dead and the articles could not be viewed, but other pages of the K website were still active. At 4:00 p.m. on the same day, he found that Stand K News had ceased to operate. L L M 38. In the application for a permanent stay of proceedings, D2 and M D3 elected not to give evidence, nor did they call any witness or adduce N N any evidence. The defence submitted that there were serious problems with O the prosecution’s handling of the case, making a fair trial not possible or O amounting to an abuse of process and an affront to the court’s sense of P P justice and propriety. The application had the following two aspects. Q Q 39. Firstly, the prosecution (including officers of the Case Team R R and sub-unit Y1) had a duty to disclose information gathered during the S investigation. Failure to disclose information or delay in disclosure could S T T U U V V  - 25 - A A B B result in a stay of proceedings by the court; it could also be regarded as C procedural irregularity rendering the conviction unsafe15. C D D 40. The defence contended that the prosecuting team had been E kept in the dark about the downloading and keeping of the 587 articles by E sub-unit Y1 officers, thus was unable to discharge their duty to prosecute F F fairly and impartially. Before PW5 and PW6 selected the 587 articles, they G had already reviewed a large number of other articles. However, the G prosecution (i.e. the prosecution team and the Case Team) was not H H informed. The defence submitted that when PW5 and PW6 had reviewed I such a large number of articles, it was obvious that they had already formed I the view that seditious publications existed on the website of Stand News. J J The objective of the review was not to conduct an impartial investigation, K but to identify those publications which PW5 and PW6 subjectively K considered to have seditious intentions. The fact that a large number of L L articles other than the 587 articles were not kept, and that the final basis of M prosecution involved only 17 articles out of a large bulk, demonstrated that M the standard was vague, biased and unfair, and it was a distortion of the N N facts, and it was grossly unfair. O O 41. The defence submitted that the defendants could have relied P P on the large number of articles reviewed by PW5 and PW6 to raise their Q defence, namely, that Stand News had reported impartially on the topics Q dealt with in the 17 articles forming the prosecution basis, so there was no R R seditious intention. However, the prosecution did not keep any articles S other than the 587 articles eventually disclosed. It was not known how S T T 15 The defence cited HKSAR v Lee Ming Tee (2003) 6 HKCFAR 336, Lewisham LBC v Elias [2004] Env LR 14, etc. U U V V  - 26 - A A B B many other articles were reviewed by PW5 and PW6 and what their C contents were. On the day the police arrested D2 and D3, the website of C Stand News ceased to operate. The defence submitted that D2 and D3 did D D not have the opportunity to save the contents of the website of Stand News, E and had thus lost the evidence which could have proved that Stand News E had adhered to the media’s principle of fairness. Such lost evidence F F included blog posts criticising the pan-democrats and putting forward other G views, or live reports on the Hong Kong Government’s press conferences, G and the Hong Kong Government’s or the Central Government’s officials’ H H formal responses to current affairs, etc. The defence contended that the I prosecution failed to have a full grasp of the facts of the case and could not I assist the court in finding the truth and administering justice. J J K 42. Secondly, the defence complained that the prosecution’s K opening submission was biased and unfair. The defence argued that the L L prosecution’s duty was to present the case fairly and impartially, instead of M going out of its way to achieve a conviction, and therefore the opening M submission must be fair and measured, and should not be an intemperate N N emotional attack on the defendants16; however, the opening submission in O this case was biased and disproportionate, showing that the prosecution had O failed to conduct a fair and impartial prosecution. The defence cited the P P following examples17: Q Q (1) Although it had been admitted by the prosecution and the R R defence that Stand News was established and registered as an S S 16 The defence cited HKSAR v Chen Keen [2021] HKCFI 3546 and Boucher v The Queen (1954) 110 Can CC 263 T 17 Paragraph 45 of the defence’s written submission of 28 November 2022 on the application for a stay T of proceedings U U V V  - 27 - A A B B online media, the opening submission described Stand News C as a political platform, which was an improper attempt to C persuade the court that Stand News was in fact a political D D platform disguised as an online media; E E (2) The prosecution’s submissions made improper use of F F debating techniques to try to persuade the court that A1 to A17 G were publications with seditious intentions, such as describing G the articles in agitating or inflammatory terms, including H H alleging that their contents were to spread rumours vilifying I the SAR Government for suppressing the protesters, calling I for redress to the injustice against or glorifying the unlawful J J protesters, etc.; K K (3) The prosecution had improperly invited the court to take L L judicial notice of and accept the Prosecutor’s personal views, M including the following allegations18: M N N “(i) Even though [at the material times] the large-scale violence and destruction appeared to have subsided, the society was still full of O undercurrents and political bombs that could destroy at any time the O government’s governing authority and overthrow the cornerstone of one country, two systems’ and the social order. P P (ii) At that time, a large group of citizens in Hong Kong (including many young people) were unwilling to accept that Hong Kong was an inalienable part of China, did not accept China’s exercise of sovereignty over Hong Kong Q and the constitutional order after the reunification, and they took various Q actions to stage resistance, resulting in a rather uneasy and extremely unstable socio-political atmosphere at that time; and R R (iii) Further, forces opposing China and disruptive of Hong Kong, together with external forces, sensationalised social incidents in an attempt to S further deepen the enmity between citizens and the government, making them S believe that they were under totalitarian rule without democracy and freedom, T T 18 Paragraph 33 of the prosecution’s opening submission U U V V  - 28 - A A B and thus motivating persons who were so affected to resort to force or various B kinds of illegal protests, or to co-operate with external forces to overthrow the existing political regime by various means.” C C 43. The defence also submitted that, by quoting the 5.28 D D 19 decision in paragraph 32 of the opening submission, the prosecution had E E insinuated without any evidential basis that articles A1 to A17 had promoted various kinds of improper ideas and incited improper acts, such F F as the independence of Hong Kong, advocacy of anti-China and anti-CPC G G propositions, deliberate disruption of social order, violent opposition H against law enforcement by the police, and the paralysing of the H government’s governance and the operation of the Legislative Council, etc. I I J (Reasons for dismissal of the defence application) J K K 44. There is no dispute between the prosecution and the defence L as to the legal principles applicable to an application for a permanent stay L of proceedings (also known as an application for a stay of criminal M M proceedings). In paragraph 10(iv)(3) of the judgment in 香港特別行政區 N 訴 韦 德 恩 [2024] HKCFI 799, the Court of First Instance summarised the N relevant legal principles established by the Court of Final Appeal 20 as O O follows: P P “…no stay should be imposed unless the defendant shows on a Q balance of probabilities that owing to the delay he will suffer Q serious prejudice to the extent that no fair trial can be held: in R R 19 S Decision of the National People’s Congress on the Establishment and Improvement of the Legal S 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 T Congress on 28 May 2020 T 20 See HKSAR v Lee Ming Tee (2001) 4 HKCFAR 133, paragraphs 39-47 of the judgment U U V V  - 29 - A A B other words, that the continuous prosecution amounts to a misuse B of the process of the court.” (footnote omitted) C C 45. After careful consideration, I accepted the prosecution’s D D explanation that the delay in disclosing the 557 articles was due to an error E of judgment on the part of the police when submitting the articles to the E Department of Justice. There was insufficient evidence in this case to show F F that the police officers of sub-unit Y1 had deliberately failed to disclose or G delayed the disclosure of all the relevant materials. After the disclosure had G been made by the prosecution, the defence was given sufficient time to H H examine the relevant articles, and the court found that the delay in I disclosure had not caused severe prejudice against the defence so that a fair I trial would become impossible. J J K 46. As regards the articles examined by PW5 and PW6, other than K the 587 articles retained by the police, it is worth noting that these articles L L not retained were not exhibits in the form of real objects taken from Stand M News or from any of the defendants or witnesses, but were downloaded by M the police officers from the Stand News website onto the paper belonging N N to the investigation team. In other words, these were not exhibits taken by O the police officers from any witness or the defendants. The officers could O not have expected that Stand News would not retain or would lose these P P documents after they had been discarded. The evidence shows that the Q police operation on 29 December 2021 did not affect the operation of the Q Stand News website. The subsequent closing down of the website was not R R by the police. The fact the defendants were subsequently unable to retrieve S other articles published by Stand News for retention was not, in my view, S something that could have reasonably been anticipated by the police and T T other officers of the prosecution. The defence argued that evidence such as U U V V  - 30 - A A B B blog posts criticising the pan-democrats was lost; however, the defendants C should have been able to obtain the necessary information from the C operator of the website’s cloud servers (i.e. Google), and Stand News had D D already moved its servers storing all its articles out of Hong Kong back in E September 2020, and had opened a branch in the UK in February 2021. E Moreover, I considered that evidence could be adduced by other F F alternatives, such as calling the authors concerned to give evidence. I did G not accept that the defence had lost the ability to use other articles as G evidence. It could be seen from the subsequent development of this case H H that although the defence contended that the articles published by Stand I News and retained by the third party were incomplete, in fact the defence I could still obtain articles other than the 587 articles disclosed by the J J prosecution and published by Stand News as evidence through different K channels21. Therefore, I was of the view that although the police did not K retain the other articles, no unfairness had been caused in the trial. L L M 47. As regards the opening submission of the prosecution, I was M of the view that the prosecution was only setting out its case on the basis N N of the evidence to be produced to the court and the materials to be adduced. O The prosecution’s approach was permitted by the relevant authorities (see O paragraphs 100 to 101 of HKSAR v Chen Keen [2021] HKCFI 3546) and P P there had been no impropriety. Moreover, even if the opening had been in Q any way unfair to the defence, I, as a professional judge, would ignore this, Q and therefore, the fairness of the trial would not be affected. R R S S T T 21 Evidence that it can be obtained from the newsroom and the wayback machine U U V V  - 31 - A A B B 48. On the whole, I was of the view that the defence had not C proved that the prosecution’s failed and/or delayed disclosure of the C materials had resulted in the defence being denied a fair trial. The defence D D was neither able to establish that allowing the prosecution to continue E would result in an abuse of the court proceedings by the prosecution, nor E establish any other valid ground in support of a permanent stay of the F F proceedings. The defence application was dismissed. The prosecution was G to proceed. G H H E. The prosecution case I I E1. Overview of prosecution witnesses J J K 49. As D1 was absent from the hearing, the prosecution was put K to strict proof and 33 witnesses in total were called to give evidence. L L M 50. Following the giving of evidence by PW2 on the downloading M of the contents of the Stand News website (including articles A1 to A15) 22, N N Police Constable 15186, the fourth prosecution witness (PW4), also O testified that he had downloaded and saved other contents of the Stand O News website (including articles A16 and A17) on 15 November and 7 P P December 2021. Articles A1 to A17 were produced as exhibits by PW2 Q and PW4 respectively23. Q R R 51. In addition, Police Constable 14915 (PW1), Detective Police S Constable 6006 (PW3) and Detective Police Constable 8971 (PW10) S 22 T Paragraph 31 in the above T 23 See exhibits PA(1)(A) to PA1(17)(A) U U V V  - 32 - A A B B similarly gave evidence in relation to the downloading of various contents C of the Stand News website, such as the launch statement of Stand News 24 C and the clips relating to 17 articles, etc. D D E 52. The evidence of the above witnesses showed that emoticon E responses and comments left by netizens regarding the contents of the F F website were available for public access. Some of them played up the G hatred towards the Communist Party of China (CPC) or the Government G of the Hong Kong Special Administrative Region (the SAR Government), H H and advocated that the public should fight till the end. There were also I netizens with different stances chastising one another. I J J 53. PW5 to PW9 gave evidence in the alternative procedure for K the application for a permanent stay of proceedings as set out in paragraphs K 33 to 37 above. L L M 54. Other prosecution witnesses testified as follows. M N N 55. Mr Cheung (PW11) is an Executive Officer of the Office for O Newspaper and Article Administration. According to his evidence, the O proprietor, printer, publisher and editor of Stand News were Yu Ka-fai at P P the time of registration in September 2017. They were subsequently Q changed to D2 in August 2018, and there was an application for changing Q them to D3 in November last year. R R S S T T 24 Exhibit PB1 U U V V  - 33 - A A B B 56. Mr Fan (PW12) is the former landlord of the office premises C of Stand News. At the material time, he had rented the premises to D1. C D D 57. Mr Wong (PW13) is an Assessor of the Inland Revenue E Department. According to D1’s tax records, between 2015 and 2018, D2 E was reported to be D1’s Chief Editor and D3 was reported to be a reporter. F F G 58. PW14 is Acting Senior Immigration Officer Cheung Chi-yan. G According to the movement record up to September 2022, since the H departure of Tsoi, D1’s current sole director, from the territory in H I November 2019 via the Hong Kong Airport, there had been no record of I his entry into Hong Kong. J J K 59. Mr Tang (PW15) is a staff member of Vistra, an international K business group. Vistra provides services for setting up overseas companies L L and had retained relevant records of D1’s overseas parent companies, M Indepth Global and Web Network. M N N 60. Senior Police Constable 54809 (PW16) and Photographer Mr O Chau (PW17) produced to the court the photographs of the scene taken by O the police on 29 December 2021 at the office of Stand News. P P Q 61. Sergeant 7164 (PW18) was responsible for handling the Q exhibits relating to Stand News’ Paypal account. R R S 62. Detective Police Constable 14593 (PW19), Detective Police S Constable 9161 (PW20), Detective Police Constable 14343 (PW21), T T Detective Police Constable 16505 (PW22), Detective Police Constable U U V V  - 34 - A A B B 10457 (PW23) and Detective Police Constable 7910 (PW26) had searched C the offices of Stand News on 29 December 2021. The exhibits seized C included computers, hard disks, memory cards, etc., staff name cards, D D cheques issued by the company, bank documents relating to House News 25, E company documents of Indepth Global and Web Network, a letter from D2 E dated 1 December 2021 about his resignation as the director of the F F company, News Stand 26 , which was a paper publication of Stand News, G etc. G H H 63. Detective Senior Inspector Yau Chor-yee (PW24) confirmed I in her evidence that, at the material time, several interviewees and authors I of the articles concerned in the case were arrested or were on the wanted J J list for being involved in various criminal cases relating to national K security, including Ho Kwai-lam, Chow Ka-shing, Leung Fong-wai K Fergus, Law Kwun-chung, Hui Chi-fung, Cheung Kwan-yang, etc. L L M 64. Detective Sergeant 4420 (PW25) was responsible for M analysing the bank records and Paypal records of Stand News. N N O 65. Sergeant 8710 (PW27) was responsible for searching D2’s O residence. At the time of D2’s arrest, an iPhone belonging to D2, D2’s P P Stand News staff card and D1’s company credit card were found in his Q residence. Upon checking his phone, it was found that D2 had opened two Q WhatsApp chat groups named “Stand” on 15 December 2021, one having R R S S 25 Another online media which ceased operation in July 2014 and was related to the establishment of T Stand News. See the launch statement of Stand News (Exhibit PC9(25)) T 26 Exhibit PC9(25) U U V V  - 35 - A A B B D3 and another Stand News reporter as group members, and the other one C having D3 only. C D D 66. Detective Police Constable 13483 (PW28) was responsible E for searching D3’s residence. E F F 67. Senior Police Constable 33805 (PW29) was responsible for G developing photographs of D2’s residence, D2’s mobile phone and D3’s G residence. H H I 68. Detective Police Constable 16503 (PW30) was responsible I for reviewing and analysing the contents of D2’s phone and producing J J transcripts of the relevant WhatsApp conversations. K K 69. Detective Sergeant 58307 (PW31), on 16 August 2021, L L checked to see if the articles concerned in the case had been removed from M the Stand News website. M N N 70. Detective Sergeant 9551 (PW32) was the arresting officer of O D2. After being arrested and cautioned, D2 said, “I am the Chief Editor of O Stand News. It has nothing to do with others.” D2 later had two video- P P recorded interviews which lasted 169 minutes in total. The admissibility of Q all the admissions was not disputed. Q R R 71. Detective Police Constable 15981 (PW33) gave evidence on S the online hit rates of articles A1 to A17. S T T E2. Context of the relevant time period U U V V  - 36 - A A B B C 72. The prosecution submitted that the court may, by taking C judicial notice, accept the following matters as the context of the relevant D D time period which would assist in its understanding of the intentions of the E articles: E F F (1) The 2019 Anti-Extradition Law Amendment Bill Movement G (Anti-ELAB Movement) triggered large-scale unlawful G assemblies, clashes between the police and the public, riots H H and other illegal incidents. Voices of hatred against the police, I the government or the CPC appeared in the community, and I there were also persistent calls for foreign intervention and J J secessionist propaganda. All these resulted in the K promulgation of the Hong Kong National Security Law 27 on K 30 June 2020 and its implementation. L L M (2) Starting from February 2020, the pro-democracy camp in M Hong Kong had tried to increase the chance of being elected N N to the Legislative Council, by organising a primary election O (known as the 35+ Primary Election), with the aim of seizing O control of the Legislative Council to threaten the government, P P and ultimately to possibly paralyse the government by vetoing Q the budget indiscriminately. Q R R S S 27 Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special T Administrative Region, which was implemented in the SAR by virtue of the Promulgation of T National Laws 2020 (L.N. 136 of 2020) U U V V  - 37 - A A B B (3) After the implementation of the Hong Kong National Security C Law on 30 June 2020, there were still risks of continued social C unrest. Extremists and radicals continued to use violent means D D to realise their political beliefs, and the process went E underground, making it more difficult to prevent and more E dangerous than large-scale riots. There continued to be calls F F for sanctions against CPC officials. There were also foreign G sanctions arising from the enactment of the Hong Kong G National Security Law. The society was still full of political H H undercurrents and soft confrontations. I I (4) A number of arrests and prosecutions by the police in relation J J to national security had aroused local and international K concern, including the arrest of a number of democrats in K relation to the 35+ Primary Election in January 2021 for L L suspected subversion of state power in contravention of the M Hong Kong National Security Law (among them, Ho Kwai- M lam, Chow Ka-shing, Leung fong-wai Fergus, etc., who were N N the interviewees of articles A1-A3), and the arrest of 5 senior O executives of Next Media and Apple Daily (one of them was O Chan Pui-man, who was D2’s wife and the author of article P P A10) in June 2021 on charges of conspiracy to collude with Q foreign elements. Q R R E3. Contents of the articles S S 73. In its closing submission, the prosecution categorised the 17 T T articles into four groups. U U V V  - 38 - A A B B C 74. The first group consisted of A1, A2, A3 and A13, totalling 4 C articles. The first 3 articles were profile interviews (i.e. A1, A2 and A3) D D with Ho Kwai-lam, Chow Ka-shing and Leung Fong-wai Fergus as the E interviewees. All three of them were candidates in the 35+ Primary E Election. The prosecution alleged that in their respective interviews each F F of the three persons promoted anti-government and anti-Central G Authorities political ideologies, i.e. seizing control of the Legislative G Council to threaten the government in order to achieve their political H H objectives. A1 advocated fighting against the CPC and the SAR I Government in different areas; A2 promoted separatist Hong Kong I nationalism; and A3 advocated that China was Hong Kong’s enemy, and J J criticised the CPC and the SAR Government as being totalitarian. As for K A13, it was a blog post written by Law Kwun-chung, which criticised the K absurdity of prosecuting the 35+ Primary Election case, alleging abuse of L L power by the CPC, and advocating the unity of Hong Kong people in M fighting against the government. The prosecution argued that this first M group of articles was clearly capable of bringing hatred against the Central N N Authorities or the SAR Government within the meaning of section 9(1), O and there were therefore seditious intentions in these articles. O P P 75. The second group consisted of 6 blog posts, A4, A5, A11, Q A12, A14 and A15, and they were about the enforcement of the Hong Kong Q National Security Law and the related judicial processes. A4 and A5 were R R authored by Chan Pui-man and Law Kwun-chung respectively, and the S remaining four articles were all written by Allan Au Ka-lun. The S prosecution alleged that article A4 used individual law enforcement and T T prosecution actions to discredit the police and to play up the regime’s U U V V  - 39 - A A B B suppression of dissidents. Article A5 alleged that the SAR Government had C subjected dissidents to unjustified arrests and long-term imprisonment, C thus suppressing Hong Kong people’s thoughts and speech. The D D prosecution also alleged that the article encouraged the readers to use E different tactics to undermine the Central Government’s governance, and E to preserve the strength and broaden the battlefront, with the aim of F F overthrowing the CPC and subverting state power. The remaining 4 G articles, A11, A12, A14 and A15, alleged that the Hong Kong National G Security Law and other laws had been abused and had become political H H tools to oppress the public. The prosecution alleged that there were I seditious intentions in the second group of articles because they smeared I and attacked the relevant law enforcement actions, prosecutions and J J judicial proceedings, which could bring into public hatred and contempt K against the SAR Government, the Police Force and the Hong Kong K National Security Law. L L M 76. The third group consisted of A6, A7, A8, A9 and A10, M totalling 5 articles. Three of them, A6, A8 and A9, were profile interviews, N N while A7 and A10 were two blog posts. The respective interviewees or O authors were Law Kwun-chung (A6 and A7), Hui Chi-fung (A8), Leung O Chung-hang Sixtus (A9) and Cheung Kun-yang (A10). The prosecution P P alleged that they were persons opposing China and disruptive of Hong Q Kong, who fled overseas after the promulgation of the Hong Kong National Q Security Law, and advocated sanctions against the Central Authorities and R R the SAR Government. Article A6 accused the regime of using unlawful S and underhanded ways to retaliate against dissidents. Article A7 used S rumours to spread hatred and arouse anti-government sentiments. Article T T A8 declared war on the SAR Government. Article A9 vilified the law U U V V  - 40 - A A B B enforcement agencies and the entire judicial system of Hong Kong. It also C promoted the idea of Hong Kong independence and depicted the CPC as C standing in opposition to the Hong Kong people. Article A10 accused the D Central Government of oppressing and brutalising Hong Kong’s autonomy D E and people with its authority and lies. The prosecution argued that the third E group of articles was clearly capable of bringing into hatred against the F F Central Authorities or the Hong Kong Government within the meaning of G section 9(1), hence the articles had seditious intentions. G H H 77. The fourth group consisted of 2 articles, A16 and A17, which I were published after D3 took over the duties of the chief editor. A16 was a I profile interview with two anonymous interviewees who claimed to be J J alumni of the Chinese University of Hong Kong (CUHK). The prosecution K alleged that by having the interviewees recall the riot that had happened on K 12 November 2019 on the campus of CUHK, the article glorified the acts L L of the rioters and discredited the legitimate law enforcement of the police, M attempting to rekindle the violent protests that had already cooled down, M so as to bring into public hatred against the SAR Government and the N N police. A17 was a news report about Chow Hang-tung’s receipt of the O Distinguished Person for Advancing Democracy in China Award, as well O as her acceptance speech. In her acceptance speech, she implied that policy P P measures such as the law enforcement arising from the 2019 bill Q amendments and the enactment of the Hong Kong National Security Law Q were acts by the CPC in the totalitarian suppression of a democratic social R R system and the law, and to undermine the freedom and openness of society, S which could bring into hatred against the Central Authorities or the Hong S Kong Government. Therefore, the prosecution alleged that the fourth set of T T articles had seditious intentions. U U V V  - 41 - A A B B C E4. Mens rea C D 78. The prosecution submitted that, as a limited company, D1’s D E mens rea was transferred from the company’s directing mind and will. As E 28 shown in its Launch Statement , D2, Yu Ka-fai and Tsoi were the founders F F of Stand News. The three of them held D1 through an overseas parent G company to operate Stand News. Yu Ka-fai later faded out from it, and G only D2 and Tsoi controlled D1 through the overseas parent company H H during the material time. I I 79. As can be seen from the defence case below, D2 admitted in J J his testimony that he, as the Chief Editor, had approved all the publications K on Stand News and confirmed that he had approved the publication of K articles A1 to A15 during his tenure of office. And although D2 claimed L L that he did not approve articles A16 and A17 because he had already left M office, the evidence shows that after he had left office, he continued to give M instructions to D3 through WhatsApp. The prosecution argued that D2 had N N merely stepped behind the scenes and was in fact still remotely controlling O the operation of Stand News with the assistance of D3. In other words, the O prosecution alleged that A1 to A17 were all published under the P P supervision of D2. Therefore, D2’s intention to publish equated to D1’s Q intention to publish. Q R R 80. Evidence shows that D2 studied Politics and Public S Administration and then had worked in journalism for a long time, and in S 2014 became the Chief Editor of Stand News, and except for rest time, he T T 28 Exhibit PB1 U U V V  - 42 - A A B B basically spent all of his time reviewing articles and news report drafts or C visiting various websites or social media platforms to obtain information. C D2 obviously had deep political profoundity, having done abundant D D research and opiniated on journalism, social and political issues. E E 81. The prosecution alleged that, against the context of the F F relevant time period, there were strong seditious intentions in the contents, G wording, opinions and ideas advocated in the 17 articles. Given D2’s G academic qualifications, personal background, working experience and H H social exposure, under the then social environment, he must have been I aware of the seditious intentions of the 17 articles, which could excite the I public’s disaffection, discontent and even hatred against the government, J J thus posing a potential national security risk. The prosecution therefore K considered that D2 possessed the mens rea required under section 10(1)(c) K of the Crimes Ordinance, i.e. knowledge of the seditious intention of the L L contents of the articles29. M M 82. In addition, the prosecution also argued that, from D2’s N N knowledge of the seditious intention of the articles, it could be inferred that O D2 foresaw the possible consequences that the articles could bring about, O and it can be further inferred that D2 had specific seditious intent. The P P prosecution submitted that the relevant inferences could be strengthened Q by the following: Q R R (1) From the editorials published by Stand News on 14 June 2019 S and 23 July 2019 on the 612 and 721 incidents respectively, it S T T 29 See paragraph 149 below U U V V  - 43 - A A B B could be seen that at the beginning of the 2019 anti-ELAB C movement, D2 and D1 (which was under D2’s control) had C already chosen to stand by the protesters and to fight against D D the police and the regime, among others. E E (2) In his speech at an online media forum summit on 14 F F December 2019, D3, the then Deputy Chief Editor said that G Stand News, as an online media, would like to give more G information to the public, so that more people could H H participate in the anti-ELAB movement. I I 83. The prosecution submitted that D2’s specific seditious intent J J then turned to become the specific seditious intent of D1. K K 84. If it was not D2 who had approved the publication of A16 and L L A17, the prosecution argued that D3, who had taken over the role of Chief M Editor at that time, must have been the directing mind and will behind the M approval. The prosecution pointed out that D3, who had been working for N N Stand News for a long time, was the Deputy Chief Editor for most of the O time during the period in question, even taking up the post of Chief Editor O during the last two months or so. According to the prosecution case, as P P there were clear seditious intentions in A16 and A17, it could be inferred Q that D3 was aware of the seditious intention in the two articles, and it can Q be further inferred that D3 could foresee the consequences of publishing R R the articles and had specific seditious intent. Therefore, in relation to A16 S and A17, D3 possessed the requisite mens rea under section 10(1)(c) which S then turned to become the mens rea of D1. T T U U V V  - 44 - A A B 85. The prosecution also argued that D1’s mens rea can be B C inferred from various matters, including the following: C D D (1) Contents of publication: Apart from articles A1 to A17, most E of the other contents published by Stand News, including E articles disclosed by the prosecution and news reports F F produced to the court separately for use in the cross- G examination of D2 30 , were directed against the SAR G Government, the pro-establishment camp and the Central H H Authorities, for example: I I (a) Editorials: Stand News rarely published editorials. The J three rare editorials published by Stand News were J respectively about the 612 incident31, the 721 incident32 K K and the Hong Kong National Security Law coming into L effect33. The prosecution stated that it can be seen from L all the three editorials that Stand News was on the M M opposing side of the police before a matter was fully N N investigated and understood and when circumstances O were highly controversial; O P (b) News Stand: News Stand 34 was a publication in paper P Q form published by Stand News in December 2020. Its Q 30 R See paragraph 114 below R 31 Protesters stormed the police line around the Legislative Council on 12 June 2019, see paragraphs 453 to 461 below S 32 S 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 T See paragraphs 470 to 476 below T 34 See paragraphs 477 to 483 below U U V V  - 45 - A A B B contents were mainly about the 2019 anti-ELAB C movement. The prosecution alleges that the publication C obviously took a hostile political stance against the D D Central Authorities and the SAR Government and sided E with the protesters, making biased allegations against the E Police Force on abuse of power and police brutality; F F G (c) Blog posts: Blogger Allan Au Ka-lun often published G extremely negative criticisms of the government on H H Stand News, especially in relation to the Hong Kong I National Security Law. The prosecution alleges that I Stand News provided a platform for Au to publish his J J political commentaries, showing that Au’s views were K the views of Stand News. The prosecution also alleges K that Stand News advocated its own ideologies and L L promoted anti-government public sentiments through M publishing blog posts and profile interviews, which can M be seen from its spectrum of bloggers who were N N obviously in favour of the pro-democracy camp. O O (2) Activities participated: Evidence shows that Stand News P P participated in pro-democracy activities on a number of Q occasions, including giving a speech at the online media Q forum summit on 14 December 2019 through D3, its then R R Deputy Chief Editor, to indicate that Stand News, as an online S media, would like to give more information to the general S public, so that more people could take part in the anti-ELAB T T movement, and also co-organising the 35+ Primary Election U U V V  - 46 - A A B B Forum in June 2019. C C 86. The prosecution argued that Stand News promoted or D D advocated anti-government political ideologies and, contrary to the E defence claim, did not comply with the principle of media impartiality at E all. The prosecution cited as an example that, while criticising the Hong F F Kong National Security Law including the arrangements of appointing G designated judges, Stand News did not report the decision of the court that G the arrangements were in line with the European human rights and H H international standards35. I I 87. The prosecution submitted that as the above shows, Stand J J News under D1’s operation was an advocacy media organisation with a K definite political stance, i.e. it was a political platform; that it clearly K supported the pro-democracy camp in the 2019 anti-ELAB movement, and L L disseminated and advocated concepts against the Central Authorities and M the SAR Government, including: that “one country, two systems” existed M in name only; the CPC controlled the SAR Government with its N N authoritarian power to exert pressure on the public, and restricted various O freedoms of the public; that the protesters could push forward the O democratisation of Hong Kong through sanctions imposed on China by P P Western countries, and so on. The prosecution further submitted that Stand Q News also promoted the pro-democratic camp’s entry into and dominance Q of the Legislative Council (LegCo) in order to further fight for their R R demands and to promote anti-government public sentiments and oppose S the implementation of the Hong Kong National Security Law. S T T 35 See HKSAR v Tong Ying Kit [2021] HKCFI 2200 U U V V  - 47 - A A B B C 88. The prosecution further alleged that the directing mind and C will of D1 must have been aware of the political stance of Stand News and D D the contents of the articles published. The prosecution suggested that, E against the context of the relevant time period, there were strong seditious E intentions in the contents, wording, opinions and advocacies, etc. of the 17 F articles. Therefore, D1’s directing mind and will must also have been aware F G of the seditious intention in the contents of the 17 articles, and hence G possessed the requisite mens rea under section 10(1)(c) of the Crimes H H Ordinance 36 . The prosecution therefore submitted that D1, through its I directing mind and will, also possessed the requisite mens rea. I J J 89. In addition, evidence shows that since the anti-ELAB K movement in 2019, Stand News had 1.6 million followers, 1.3 million K likes, and D1’s revenue had skyrocketed. It is thus evident that Stand News L L had strong readers’ support. The prosecution alleged that Stand News had M the ability to set topics for public discussion and could even lead it to M skewed conclusions. The prosecution suggested that the court can infer N N that, against the background of the social unrest at the material time, the O principal of D1 must have contemplated the natural seditious consequences O that could be triggered by the articles. It can be further inferred that the P P principal of D1 made use of the influence of Stand News to promote anti- Q Government ideology, in other words, had specific seditious intent. The Q prosecution gave the following example: Stand News continuously R R suggested in its commentaries that the HKNSL was detrimental to S democracy and freedom in Hong Kong; such commentaries included the S T T 36 See paragraph 149 below U U V V  - 48 - A A B anti-Government viewpoints and opinions in Allan Au Ka-lun’s articles. It B C was obvious that the intention was to implant these ideas in people’s hearts C and minds. Therefore, even if section 10(1)(c) of the Crimes Ordinance D D requires the person who publishes seditious publications to have E contemplated the consequences of sedition, or even specific seditious E intent, the prosecution’s stance is that D1, through its directing mind and F F will, had the requisite mens rea. G G 90. The prosecution suggested that the following actions were H H taken by the directing mind and will of Stand News to avoid law I enforcement actions because he was conscious of the unlawful seditious I intention of the publication. These actions therefore support the inference J J that the directing mind and will had the requisite mens rea for the offence K of publishing seditious publications: K L L (1) Moving the server of Stand News out of Hong Kong in M September 2020; M N N (2) Establishing its UK branch in February 2021 and O subsequently remitting HK$12 million as its working fund; O P P (3) Making an announcement on 27 June 2021 on taking down Q the articles. Q R R E5. Conspiracy agreement and intention to put it into effect S S 91. D2 admitted in his evidence that Tsoi had provided the funds T T to set up Stand News. The prosecution submitted that Tsoi, as an investor, U U V V  - 49 - A A B B had the final say in financial matters and made the final decision on the C retention or dismissal of the Chief Editor. He in fact controlled the direction C of Stand News’ operation, including signing D2’s employment contract, D approving D2’s pay rise, and approving the deployment of funds to the UK D E branch, etc. The prosecution therefore came to the view that Tsoi was the E ultimate directing mind and will controlling the operation of D1 and Stand F F News. In addition, the prosecution suggested that Stand News ceasing its G operation to the public a few hours after the arrest of D2 and D3 must have G been a decision made by Tsoi, as the ultimate directing mind and will, who H H was well aware of the existence of evidence of crime on the website of I Stand News. I J J 92. Likewise, relying on D2’s evidence, the prosecution alleged K that D2’s stance on important core values or cardinal issues of absolute K right and wrong was similar to those of Tsoi and D3. D2 also agrees that L L Stand News was a platform which Tsoi had provided to him (“to create a M stage”) for him to operate. The prosecution suggested that, as Tsoi M appointed D2 to be the Chief Editor and D2 had been approving seditious N N publications, Tsoi must have been aware of and agreed all along with such O matters. The prosecution infers from the above that Tsoi, as the ultimate O directing mind and will of Stand News, had been conspiring with D2 to P P make use of Stand News to continuously publish seditious publications. Q From the publication of articles A1 to A17 as approved, it was clear that Q the conspirators had the intention to put the conspiracy agreement into R R effect. S S 93. The prosecution alleged that D2, who continuously gave T T approval of publishing seditious publications, was a core conspirator in the U U V V  - 50 - A A B B present case. In addition to Tsoi, other persons including the interviewees, C authors and so on, also took part in the conspiracy. C D D 94. As for D3, he had worked at Stand News for a long time, being E the deputy Chief Editor for the better part of the time when the offences E occurred, even taking up the post of Chief Editor in the last two months or F F so. The prosecution alleged that D3 must have been fully aware of the G political stance of Stand News and the contents of the articles published at G the material time. Under the circumstances, D3’s assistance in running H H Stand News can show that he also took part in the conspiracy in this case, I joining in at the latest when he took up the post of Chief Editor, and I intended to put the conspiracy agreement into effect by participating in the J J publication of A16 and A17. K K F. The defence case L L M 95. The defence did not dispute that D1 operated Stand News and M published articles A1 to A17. Most of the exhibits and the evidence of N N prosecution witnesses are also agreed by the defence 37. O O 96. However, the defence did not accept the inference drawn by P P the prosecution and raised a number of constitutional and legal arguments Q on the offence of publishing seditious publications, thereby disputing (1) Q whether there was any seditious intention in the articles (the defence argued R R that in addition to proving the articles had such intention, the prosecution S has to prove that the articles posed a real risk to national security); (2) S T T 37 The Admitted Facts (Exhibit P1) U U V V  - 51 - A A B B whether the defendants possessed the mens rea (the defence argued that the C prosecution has to prove specific seditious intent); and (3) whether the C principle of operational proportionality applies. On the first day of trial, I D D directed that the relevant constitutional and legal issues be reserved and be E dealt with after the conclusion of the evidence. Lastly, the defence also E disputed whether the defendants had entered into an agreement with others F F to publish seditious articles and whether they intended to put it into effect. G G 97. After the conclusion of the prosecution case, the defence H H (including D1 who was absent) did not make any midway submission, and I I ruled that there was a prima facie case and the three defendants had a case I to answer. D1 was absent from the trial and did not put forward any J J evidence. D2 elected to give evidence but did not call any witness. D3 K elected not to give evidence and did not call any witness. K L L (D2 only admitted approving the publication of A1 to A15) M M 98. D2 testified that he joined the online media “House News” in N N 2012 as an editor and had worked there until July 2014 when it ceased O operation. In December 2014, D2, Tsoi and Yu set up D1 to run Stand O News on a non-profit-making basis, with D2 assuming the position of the P P Chief Editor of Stand News. The defence pointed out that D1 was held by Q an overseas company, Web Network, which was held by another overseas Q company, Indepth Global. D2, Tsoi and Yu each held one-third of the share R R in Indepth Global, but all three of them, at the same time through a trust S arrangement, had waived their financial interest in the share and their right S to dispose of it, so that D1’s share was held on trust on a long term basis. T T U U V V  - 52 - A A B B 99. In terms of the contents of the publication, D2, as the Chief C Editor, was the sole and final decision-maker of Stand News. D2 admitted C that he had approved the publication of A1 to A15 when he held the office D D of the Chief Editor. E E (The articles had no seditious intention) F F G 100. Regarding the prosecution’s first group of articles (i.e. A1, G A2, A3 and A13), D2 did not consider that there was any seditious intention H H in them. The 35+ Primary Election had an impact on the original 2020 I LegCo Election, which was a matter of public interest and was I newsworthy, necessitating full documentation and truthful reporting. The J J purpose of the three profile interviews in A1 to A3 was not to support or K praise the interviewees, but to explain to the public their political K ideologies through the interviews. D2 pointed out that the author of A1 had L L conducted the interview in a sceptical manner. As for A2, according to M D2’s understanding, the Hong Kong nationalism mentioned by the M interviewee did not necessarily mean secessionist Hong Kong N N independence. The interviewee in A3 had already been disqualified from O running in the election before the interview and had no chance to run in the O election at all. The government subsequently postponed the LegCo P P Election, so there was no question of supporting this interviewee’s election Q campaign. Regarding A13, D2 considered that the author’s comments did Q have factual basis in that they were based on the author’s knowledge of the R R law and of the details of the primary election case. S S 101. Regarding the prosecution’s second group of articles (i.e. A4, T T A5, A11, A12, A14 and A15), where the bloggers concerned criticised law U U V V  - 53 - A A B B enforcement operations and judicial procedures of the HKNSL and C described the offence of sedition as an evil law, etc., D2 considered that C there was a factual basis for the criticisms and they reflected the public D D concerns and views at the time. D2 stressed that the authors genuinely E believed that the policy and the law contained errors, and that they were E not malicious and did not have seditious intent. F F G 102. Regarding the prosecution’s third group of articles (i.e. A6, G A7, A8, A9 and A10), D2 considered that what was advocated overseas by H H the interviewees and bloggers concerned involved the interest of Hong I Kong, affecting the public and thus needed to be made known to the I members of the public, and that the criticisms towards the government, law J J enforcement agencies and even the Judiciary were genuine and had no K seditious intent. The defence produced as evidence other media reports, K showing that other media had also published views and propositions of the L L persons concerned, such as the profile interviews of Law Kwun-chung by M the Hong Kong Economic Journal and Cable News 38. M N N 103. Regarding the prosecution’s fourth group of articles (i.e. A16 O and A17), D2 stated that the articles were not approved by him as he had O already left the post of Chief Editor by that time. In any event, D2 had read P P the articles afterwards and considered that A16 gave a neutral and true Q account of the memories and feelings of the interviewed CUHK alumni, Q that the content was consistent with the facts, and he did not consider it R R seditious. As for article A17, D2 considered that it was not an article with S S T T 38 Exhibits D2(89) and D2(91) U U V V  - 54 - A A B B seditious intention but a typical news report, and the same event was C reported by other media. C D D 104. The defence submitted that criticisms of mistakes made by the E government, law enforcement agencies and even the Judiciary are E permitted under the freedom of speech and have no seditious intent. Stand F F News published A1 to A17 for the purpose of playing the role of the fourth G power as a member of the media to monitor those in power through G documentation and reporting, so that the government and those in power H H can be reminded and alerted, and then rectify problems. The defence relies I on section 9(2) of the Crimes Ordinance which provides the defence that I pointing out errors in the government’s measures or the constitution or in J J legislation or in the administration of justice and so on, with a view only to K the remedying of such errors, is not seditious. K L L (The articles did not constitute real risks to national security) M M 105. D2 was of the view that there has long been public discontent N N with the government in society, and expressing discontent was just an O expression of public opinion, and in no way did it mean that there exists O real risks to national security sufficient to undermine the authority of the P P government and to overthrow the constitutional system of “one country, Q two systems”, etc. He was also of the view that the situation was not as Q serious as unrest in foreign countries, despite the development of the 2019 R R anti-ELAB movement which surprised him with its extremely heated S public sentiments. D2 believed that the country is very strong and the S occurrence of real risks to national security is unlikely. D2 testified that, T T having considered the issue of risk to national security, he did not think U U V V  - 55 - A A B B that any of the articles in A1 to A15 constituted any real risk to national C security and therefore approved their publication. Likewise, the defence C did not consider that A16 or A17 constitutes any real risk to national D D security. E E 106. The defence contended that it is clear from D2’s evidence F F below that D2 did consider the issue of risk to national security in G approving the publication of the articles, negating any specific seditious G intention: H H (1) After the HKNSL had come into effect, Stand News changed I I its objectives and no longer published or republished articles J that contained Hong Kong independence or separatism J ideology. K K L (2) Stand News did make attempts to filter out and/or delete L messages, etc. posted [online] involving protest slogans (e.g. M M “Liberate Hong Kong, revolution of our times”) to prevent N N netizens from inadvertently violating the law. O O (3) When the article on Northern Ireland was republished P P inadvertently, D2 considered the content came close to Q terrorism and therefore inappropriate for publication, and Q instantly instructed his colleagues to take down the article. R R S (4) Stand News issued an announcement on 27 June 2021 to take S down more than 30,000 blog posts to reduce the risk of T T inadvertently stepping on the red line. Later on, other articles U U V V  - 56 - A A B B and interviews were also reviewed, with those involving C persons criticised by the government or the pro-establishment C being taken down. D D E (5) D2 had taken down article A1, but later decided to relaunch it E after considering whether there was any potential risk, thus F F showing his genuine belief that the content did not have any G seditious intent. G H (Media’s responsibility, not a political platform, no seditious intention) H I I 107. As the Chief Editor, D2 testified that Stand News had tried its J J best to accommodate a wide range of voices, and would not change its K content due to social pressure, emphasising that publishing an article was K not equivalent to endorsing the author’s stance or the content of the article. L L D2 stated that there were three principles of content publication in Stand M News: (1) freedom of speech was the first and foremost; (2) playing the M role of the fourth power as a member of the media in monitoring, checking N N and balancing the powers; and (3) striving to be the voice for the minority, O the powerless and the outcasts. D2 denied that Stand News was an O advocacy media organisation or a political platform. P P Q 108. As for the blog posts, as long as they (1) did not pose an Q immediate risk of violence, (2) were not prejudicial to public health, and R R (3) contained no unfounded allegations or defamatory statements against S individuals, Stand News endeavoured to publish as many blog entries as S possible in order to demonstrate a high degree of freedom of speech, and T T to be inclusive of opposing viewpoints. Therefore, despite the fact that D2 U U V V  - 57 - A A B B or Stand News may not necessarily agree with the content, it would still be C made available to the readers. As for the profile interviews, even if the C interviewees had strong political beliefs, Stand News would still report D them faithfully in order to fulfil the media’s responsibility of reporting on D E public issues. E F F 109. The defence adduced reports and interviews from different G media to show that the media in Hong Kong have always been able to G report on different political beliefs, demonstrating the freedom of speech H in Hong Kong under “one country, two systems”, including the reports of H I Ming Pao and HK01 on Ni Kuang talking about himself as an anti- I communist writer39, HK01’s report on Liu Xiaobo’s Charter 08 with the J J full text published 40 and the reports of am730 and Hong Kong Economic K Journal on Benny Tai Yiu-ting calling for the occupation of Central 41. K L L 110. D2 stressed that the approval of the publication of A1 to A15 M carried no seditious intent, and was merely the discharge of the media’s M responsibility of reporting faithfully on people and issues relating to public N N interest and that even if the reports contained criticisms of the Central O Authorities and/or the SAR Government, the members of the public did O have the right to know. P P Q (Publications other than the 17 articles) Q R R S S 39 Exhibits D2(5) and D2(6) 40 T Exhibit D2(1) T 41 Exhibits D3(3) and D2(4) U U V V  - 58 - A A B B 111. D2 testified that Stand News published approximately 40 to C 50 articles a day. The defence estimated that at least 20,000 articles were C published by Stand News during the period specified in the charge, and D D that the 17 articles relied upon by the prosecution as the basis of the charge E constitute only a very small part. As for other articles downloaded by the E prosecution, and the news reports that were produced separately for the F F purpose of cross-examination42, the defence submitted that they have all G been screened and selected to favour the prosecution case. G H H 112. The defence submitted that to determine whether the I defendants had the mens rea or not, the court has to consider the contents I published by Stand News in their entirety, and should not leave out other J J articles or media materials that Stand News published while discharging K its duty of impartial reporting as a member of the media. For example, K Stand News carried live broadcasts of government press conferences, L L covered court cases in detail and with accuracy, cited reports by other M members of the media on the news of the pro-establishment camp and on M news from official sources, etc. The defence submitted a number of Stand N N News articles covering the pro-establishment camp and pro-China figures, O including those reporting on the criticism made by the Liaison Office of O the Central People’s Government in the Hong Kong Special P P Administrative Region, the pro-establishment camp and others against Q Paul Harris, then Chairman of the Bar Association, for advocating the Q amendment of the HKNSL and his criticism on the lack of fair trials in the R R Mainland43. S S 42 T See paragraph 114 below T 43 Exhibits D2(12A), D2(12B) U U V V  - 59 - A A B B 113. The defence cited different authorities and professional media C guidelines to submit that: C D D (1) The media has a duty to report on events or issues of a public E nature and involving public interest, and is the fourth power E 44 in monitoring the government . F F G (2) If a member of the media is penalised for publishing the words G of others, its efforts in contributing to public discussions will H H be seriously hampered. Unless there are particularly strong I reasons, this should not be permitted45. Likewise, the media I being penalised for putting questions in any particular way to J J the interviewees should not be permitted46. K K (3) The court should respect the different styles and techniques L L adopted by the media profession47. Generally, the law should M not require the media to distance itself in a formal and M systematic manner from the contents they cite. It should be N N deemed sufficient for the media to make clear (such as by O using quotation marks) that it is simply relaying the words of O a third party48. P P Q Q 44 The defence cites cases such as Pedersen v Denmark (2006) 42 EHRR 24 and Apple Daily Ltd v The R Commissioner of the Independent Commission Against Corruption [2000] 1 HKLRD 647 R 45 The defence cites cases such as Jersild v Denmark (1995) 19 EHRR 1, Thoma v Luxembourg (2003) 36 EHRR 21 S 46 S 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 T Pao Holdings [2016] 2 HKC 518 T 48 The defence cites Thoma v Luxembourg (2003) 36 EHRR 21 U U V V  - 60 - A A B B (4) Being unbiased does not necessarily call for the coverage of C the voice of another party in the same article; as long as it is C published within a reasonable period, it can be regarded as D D appropriately unbiased49. E E (Objection to documents submitted by the prosecution for use in cross- F examination) F G G 114. For the purpose of cross-examining D2, the prosecution H submitted a Master Chronology of Events (MFI-4) concerning the H background relating to the 17 articles and 4 volumes of relevant news I I 50 reports (including those published by Stand News). The defence J objected. Having heard from both the prosecution and the defence, I J allowed the prosecution to cross-examine D2 in respect of MFI-4 and the K K relevant news reports for reasons set out below. L L 115. There are two basic principles in criminal trials: M M N N (1) Both the prosecution and the defence have full power to O determine the manner in which they cross-examine the O witnesses of the other side. As long as the matters being cross- P P examined on are relevant to the issues to be tried, the party Q conducting the cross-examination is entitled to put questions Q to the witness, regardless of whether the witness is a R R prosecution witness or the defendant. S S 49 T The defence cites BBC Editorial Guidelines T 50 Exhibit P35(1) to (4) (not including the 587 articles disclosed by the prosecution) U U V V  - 61 - A A B B (2) When a defendant elects to give evidence in court, he is C required to answer all questions relevant to the issues being C tried, irrespective of whether he has touched on such issues in D D his evidence-in-chief, and whether such questions will lead to E his conviction. E F F 116. In the present case, whether the 17 articles in question had the G seditious intention as alleged and whether each of the defendants had the G requisite mens rea are issues in the trial, and they can even be said to be H H the most important issues in this trial. In other words, when D2 gave I evidence in court, the prosecution could as a matter of course cross- I examine D2 on these issues. J J K 117. With regard to what sedition is and whether each of the K articles and each defendant had seditious intention, it is my view that the L L context of the relevant time period of the publication of the articles in M question is not only an important but indispensable factor to be taken into M account. Therefore, it is open to both the prosecution and the defence to N N adduce evidence in relation to the context of the relevant time period. O O 118. The prosecution submitted that MFI-4, which listed out 278 P P items of events, was handed up for the purpose of facilitating D2, the Q defence and the court in understanding the prosecution’s cross- Q examination, and was not by itself evidence, and that only the testimony R R given by D2 in court was evidence. In my view, even in the absence of S MFI-4, the prosecution was still entitled to ask D2 the same questions and S D2 was still required to answer them. The function of MFI-4 was merely T T U U V V  - 62 - A A B B to facilitate the conduct of the trial. I therefore cannot see any unfairness C being caused to D2. C D D 119. Moreover, I consider it fair to D2 and essential that the E prosecution questions him about the events concerned and about his E perception of such events at the material time. The reason being that when F F the prosecution is asking this court to conclude that certain events have G actually happened on the basis of judgments in other cases and by “judicial G notice”, the prosecution should give D2 the opportunity to give his account. H H I 120. The defence argued that what the prosecution was doing was I putting forward rebuttal evidence without fulfilling the strict requirements J J for producing such evidence, and above all the prosecution must have K known before concluding its case that it needed to adduce evidence in this K regard. L L M 121. I do not agree that the prosecution was putting forward M rebuttal evidence. In my view, the prosecution was entitled to cross- N N examine D2 on whether he admitted the occurrence of facts which the O prosecution believed could be established by the evidence they adduce by O judgments of other courts and by the court taking judicial notice. The P P prosecution could also by cross-examining D2 establish D2’s knowledge Q of the events in question at relevant times, thereby asking the court to Q consider whether D2 had the requisite mens rea. This is a point on which R R the prosecution could cross-examine only if D2 testified in court. S S 122. The defence also submitted that the events on which the T T prosecution intended to cross-examine took place over the span of more U U V V  - 63 - A A B B than four years, so it was possible D2 already had no recollection of them, C and that it would be unfair to allow the prosecution to use the documents C prepared by them to cross-examine D2 because the court may as a result D D think that D2 is a dishonest witness. In my opinion, if D2 really had no E recollection, he might well say so directly. As to whether his testimony is E credible, of course, it is a matter that this court will have to carefully F F consider in giving judgment. On this issue, this court will certainly consider G whether D2’s failure in remembering the events in question was due to the G passage of time, or whether he was not giving honest evidence. This is a H H matter that a jury in a normal trial will consider as a matter of course. I Therefore, it cannot possibly be unfair to allow the prosecution to cross- I examine D2 in such a way. J J K 123. Furthermore, D2 had already given evidence on the events K that took place back in 2019. For example, he talked about the share L L arrangements and so on of Indepth Global Limited, the parent company of M Stand News, at the time the latter was established. These events took place M on 16 December 2014 or earlier, showing that D2 could still remember the N N events in question despite the fact that they happened more than 4 years O ago. O P P 124. Having considered the submissions of both the prosecution Q and the defence, I find that the prosecution is entitled to cross-examine D2 Q on MFI-4. I have also allowed reasonable time for the defence to go R R through MFI-4 in order to formulate their response. S S (D2’s evidence under cross-examination) T T U U V V  - 64 - A A B 125. D2’s evidence under cross-examination includes: B C C (1) While carrying out journalistic work, D2 looked on with D D curiosity and gained an understanding of social events, getting E a grasp of their occurrence and course of development. From E 2012 onward, D2 has kept an eye on social media and the F F discussions therein on a daily basis, taking in the concerns of G different people towards different events or news, as well as G the intensity and direction of the discussions, so as to develop H H his journalistic sense through understanding the pulse of I society. I J J (2) As a journalist, being aware of different viewpoints does not K necessarily mean having a stance towards each one of them, K be it for or against, agreeing or disagreeing. Particularly when L L situations are constantly evolving and opinions are divergent, M it is only natural to adopt a non-judgmental and unbiased M attitude. What needs to be judged is whether the issues in N N question are important and of a public nature, and whether O public interest is at stake. As far as political stances are O concerned, it is very reasonable to have no personal judgment P P on certain issues. On the contrary, it is odd to take clear Q stances on all issues, big or small, like drafting a political Q manifesto. R R S (3) Take the 35+ Primary Election as an example. D2 would not S hold a view of his own on each and every proposition and T T suggestion made by the candidates. It was not the pros and U U V V  - 65 - A A B B cons of certain propositions that he needed to judge. In C relation to certain political demands and intended measures to C be taken, there would be times when D2 took no stance but D D only played the role of a spectator. E E (4) As for the purpose of the 35+ Primary Election, D2 F understood that it was mainly to coordinate the candidates so F that the maximum number of seats could be won. Although G G D2 accepted that there were voices in the community saying H that the goal of winning half of the seats in the LegCo at that H time lay in vetoing the government’s budget, D2 stated that I I his focus then was on coordinating the candidates. J J (5) In respect of the views and political beliefs of blogger Allan K K Au Ka-lun, in D2’s view, Au held a genuine belief that there L were mistakes in policies, in measures or in the legislation. L M M (6) On whether the words and deeds of Law Kwun-chung were N obviously unlawful, D2 expressed reservations. N O O 126. In conclusion, the defence contended that D2 was carrying out P normal media work in line with the Launch Statement 51 when approving P and publishing A1 to A15 and did not have any seditious intention, and Q Q Stand News was also not a political platform. R R 127. Similarly, the defence reiterated that A16 and A17 were not S S articles with seditious intention and submitted that D3, in reviewing and T T 51 Exhibit PC9(25) U U V V  - 66 - A A B B approving A16 and A17 as the acting Chief Editor, did not have any C seditious intention. C D D 128. Since D2 and D3 had no seditious intention, D1 also had no E seditious intention. E F F (No evidence of conspiracy) G G 129. D2 testified that Stand News was editorially independent with H H all the editorial powers delegated to the Chief Editor, and that the directors I would not interfere. Concerning the publication of A1 to A15, D2 had I insisted all along, from the time of his arrest through to his testimony in the J J witness box, that it was his decision alone. The defence argued that the K prosecution did not have any evidence of conspiracy. K L L 130. According to D2’s evidence, and D3’s medical report(s) and M sick leave certificate(s) obtained during the police raid and arrest, D3 was M on sick leave for health reasons from around March 2020, for almost the N N whole of April and May. Since then, he had been recovering at home and O was unable to go to work for a long period of time. The defence argued that O the prosecution had not presented any evidence to prove that D3 had been P P responsible for reviewing and approving any of the articles A1-A15. The Q prosecution argued that D3 had worked for Stand News for a long time and Q must have been aware of the articles published by Stand News. However, R R the defence argued that even if there was knowledge of the articles S published and their contents, it did not mean that there was seditious or S conspiratorial intention. T T U U V V  - 67 - A A B B 131. As to the fact that D2 continued to communicate with D3 and C other Stand News staff from time to time after his resignation, the defence C argued that it did not mean that D2 was still in control of the editorial work D D of Stand News in the capacity of Chief Editor, and that D2 had only made E occasional suggestions, such as correcting wrongly written words in the E published articles, out of care for Stand News. The defence also argued that F F the prosecution did not have any evidence to prove that D2 was involved G in the review and approval of A16 and A17, and that in relation to A16 and G A17, as in the case of A1 to A15, the prosecution did not have any evidence H H of conspiracy. I I 132. The defence submitted that, during the trial, the prosecution J J alleged that D2 was the principal of D1 and since the prosecution did not K allege that D1 was manipulated by other directors, in such circumstances, K D1 and D2 belonged to the same mind, and that legally, there could be no L L conspiracy with the same person/mind 52. M M 133. The prosecution alleged for the first time in its closing N N submission that Tsoi was one of the directing minds and wills of D1 and O the ultimate boss. The defence argued that different people could be O responsible for different aspects of a company’s activities, and that in P P considering who was the directing mind and will of a company, the court Q must take into account not only the nominal capacity but also the actual Q operation of the company and the exercise of power. The defence R R submitted that the prosecution had no evidence whatsoever to show that S Tsoi was involved in the day-to-day operation of Stand News during the S T T 52 The defence cites Archbold Hong Kong 2023 §36-27 U U V V  - 68 - A A B B material time, particularly with regard to the editing, reviewing and C approving of A1 to A17, and that the allegation that Tsoi conspired with C D2 or D3 could not be substantiated. D D E G. Verdict E F F G1. Legal directions G G 134. I bear in mind that the burden of proof is on the prosecution H H and that the standard of proof is beyond reasonable doubt. In other words, I in respect of each defendant, the prosecution must prove each element of I the offence beyond reasonable doubt. J J K 135. D2 elected to give evidence, D1 gave up participating in the K trial, and D3 elected not to give evidence. I bear in mind that the court must L L not draw any adverse inference against any of the defendants based on their M selection of giving or not giving evidence, as they are not obliged to fulfil M any form of burden of proof on any issue at the trial. Each defendant is not N N required to prove its/his innocence or to cast doubt on any of the allegations O made by the prosecution. On the other hand, since D2 has testified in court, O his evidence forms part of the overall evidence. Consequently, no matter P P whether all or part of D2’s evidence is for or against the defence of D1 Q and/or D3, I must consider D2’s evidence when considering the verdict Q against each defendant. R R S 136. I must consider the circumstances against and in favour of S each defendant separately and then reach an individual and separate verdict T T as to whether each defendant is guilty or not guilty. Since the evidence U U V V  - 69 - A A B B against each defendant is not the same, the verdict for each defendant need C not be the same. In other words, whether or not a defendant is found guilty C has nothing to do with the guilt or otherwise of the other defendants. D D E 137. All three defendants have no previous criminal conviction E record. I bear in mind that their propensity to commit the alleged offences F F is lower compared to persons with a criminal record or of bad character, G and that the credibility of their evidence and/or statements made in and/or G out of court is higher. H H I 138. D2 and D3 made statements under caution after arrest. Their I statements appeared to contain both parts that were favourable and J J unfavourable to them personally. Therefore, I must consider their K statements under caution as a whole and weigh them together with all the K evidence in the case to find the truth. I bear in mind the above guidelines L L on good character. M M 139. On the other hand, if the cautioned statement of a defendant N N contains a part that is unfavourable to the defence of the other defendants, O I bear in mind that his cautioned statement is inadmissible as evidence O against these other defendants. However, if his cautioned statement P P contains a part that supports the defence of the other defendants, I must Q take that defendant’s cautioned statement into account in determining the Q guilt or innocence of these other defendants. In short, each defendant’s R R cautioned statement would not be used against any other defendant; it S would only be evidence in support of the other defendants. S T T U U V V  - 70 - A A B B 140. When D2 and each of the prosecution witnesses were giving C evidence, I carefully observed their demeanour, which assists me in C assessing whether they are honest and credible witnesses. However, I also D D bear in mind that demeanour alone is not a safe and reliable indicator of E the truthfulness of the evidence. I must consider more carefully the inherent E probability and credibility of the evidence, and whether the evidence of the F F witness is in conflict or contradiction with any other facts that are not in G dispute or cannot be disputed. G H H 141. I also bear in mind that while I am entitled to infer from I proven facts that other facts exist, the first and foremost condition is that I the basic facts on which the inference is based must either have been J J admitted by the prosecution and the defence or have been proved beyond K reasonable doubt. Furthermore, if an inference is drawn, it must be the only K reasonable and irresistible inference. On the other hand, in making an L L inference, I can consider the cumulative effect of individual factual M circumstances. M N N 142. As D1 did not appear in court for trial, I have the O responsibility to consider the grounds of defence for D1 that might be O disclosed from the evidence. However, I am not in a position to act as the P P defence counsel of D1. On the other hand, there is no doubt that the Q submissions made by D2 and D3 through their legal team greatly assist D1, Q and this is because if both D2 and D3 are acquitted, D1 cannot be convicted R R of conspiracy with D2 and D3. S S G2. Trial issues T T U U V V  - 71 - A A B B 143. I have to rule on the following constitutional and legal issues: C C (1) Whether the prosecution is required to prove that the D D publications in question constituted a real risk to national E security; E F F (2) The mens rea required for the offence of publishing seditious G publications; G H H (3) Whether operational proportionality is applicable in this case. I I 144. As D1 was not present at trial, the prosecution called 33 J J witnesses to give evidence, and most of the evidence given by these K witnesses were already admitted by D2 and D3 under section 65C of the K Criminal Procedure Ordinance53. Although the legal team of D2 and D3 L L cross-examined the prosecution witnesses when they gave evidence, they M did not seek leave to amend any of the admitted facts set out in Exhibit P1 M after the cross-examination, nor did they make any submissions on these N N basic facts in their closing submission. They did not dispute the time that O the 17 articles were taken from Stand News’ official website and social O media platforms. That these 17 articles were published by Stand News was P P also not disputed. The facts admitted by D2 and D3 do not constitute Q evidence against D1, but I accept that all the prosecution witnesses are Q honest and reliable, and I accept their evidence. Their evidence proves the R R facts set out in the Admitted Facts 54 and other facts set out in their S statements, which are admissible in the trial of all three defendants. These S 53 T Exhibit P1 T 54 Exhibit P1 U U V V  - 72 - A A B B basic facts include the corporate structure of D1, its shareholders and C personnel appointments, the operation of Stand News, the publication of C the 17 articles in question A1 to A17 on Stand News’ website and social D D media, the time of publication as shown in the list in paragraph 19, D2 E being the Chief Editor of Stand News at the time of publication of A1 to E A15, and D3 being the Acting Chief Editor of Stand News at the time of F F publication of A16 and A17, and the course of arrest and seizure of G evidence, and so on. I do not consider it necessary to set out these basic G facts in detail in the Reasons for Verdict. On the basis of these basic facts, H H I have to rule on the following issues: I I (1) Whether there were seditious intentions in all or part of the J J articles A1 to A17; K K (2) Whether the defendants had the requisite mens rea; L L M (3) Whether the defendants had entered into the conspiratorial M agreement as alleged by the prosecution. N N O G3. Constitutional and legal issues O P P 145. Under section 159A of the Crimes Ordinance, the prosecution Q in this case has to prove that the three defendants entered into an agreement Q with each other (and with other persons) which, if such agreement(s) R R was/were carried out, would have amounted to the commission of an S offence by one or more of them (see HKSAR v Harjani Haresh Murlidhar S (2019) 22 HKCFAR 446). The prosecution submitted that the publication T T of the 17 articles was the offence (the offence of publishing seditious U U V V  - 73 - A A B B publications under section 10(1)(c)) committed by the three defendants and C other conspirators when their agreement (i.e., to continuously publish C seditious articles in Stand News) was carried out. The prosecution therefore D D has to prove that at least one of the 17 articles had a seditious intent. E E 146. Under section 9(1) of the Crimes Ordinance (before its repeal F F on 23 March 2024) applicable at the material time: G G “(1) A seditious intention is an intention – H H (a) to bring into hatred or contempt or to excite disaffection against the [Central People's Government (CPG) or the I SAR Government55]; or I (b) to excite … inhabitants of Hong Kong to attempt to J J procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established; K or K (c) to bring into hatred or contempt or to excite disaffection L against the administration of justice in Hong Kong; or L M (d) to raise discontent or disaffection amongst … M inhabitants of Hong Kong; or N (e) to promote feelings of ill-will and enmity between N different classes of the population of Hong Kong; or O O (f) to incite persons to violence; or P (g) to counsel disobedience to law or to any lawful order.” P Q 147. Under sections 10(1)(c) and 10(5) (before their repeal on 23 Q March 2024): R R S “(1) Any person who – S 55 Interpretation of section 9(1) of the Crimes Ordinance in accordance with section 2A(3) of and T Schedule 8 to the Interpretation and General Clauses Ordinance, Chapter 1 of the Laws of Hong T Kong U U V V  - 74 - A A B B (c) prints, publishes, sells, offers for sale, distributes, C displays or reproduces any seditious C publication; ... D shall be guilty of an offence and shall be liable for a first offence D to a fine at level 2 and to imprisonment for 2 years, and for a subsequent offence to imprisonment for 3 years; and any E E seditious publication shall be forfeited to the Crown. F (5) In this section – F seditious publication (煽動刊物) means a publication having a G G seditious intention.; H seditious words (煽動文字 ) means words having a seditious H intention”. I I 148. It was not disputed by the prosecution and the defence that J under section 10(1)(c), the publisher must have knowledge of the contents J of the publication and the underlying intention to publish. Apart from that, K K the prosecution has to prove that the publisher had the mens rea required L L 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 M M requirement is that the publisher must have a specific seditious intent, i.e. N N must have a seditious intention as specified in Section 9(1). The second O level is the publisher must have foreseen the seditious effect as a natural O consequence triggered by the article, be aware of the risk but did not pay P P heed to it, and unreasonably took the risk (i.e. being reckless about the Q consequences of seditions). The third, which is the lowest level of Q requirement, is that the publisher must at least have had knowledge of the R content’s seditious intention in the articles. R S S 149. The prosecution disagreed with my decision in Lai Man Ling T T [2022] 4 HKLRD 657 that the publisher must have specific seditious U U V V  - 75 - A A B intent56. Of the three possibilities, the prosecution argued that it was only B C necessary to prove the publisher’s knowledge of the seditious content of C the article(s) (i.e. the lowest level of requirement mentioned above). It is D D not necessary to prove the publisher’s specific seditious intent or that he E was reckless about the consequences of seditions; and taking a step back, E being reckless about the consequences of seditions should also be sufficient F F to support the charge57. G G 150. Assuming that the mens rea required is specific seditious H H intent or being reckless about the consequences of seditions, the I prosecution still argued that the court could draw inferences from the I publisher’s knowledge of the content’s seditious intention in the article(s). J J And assuming that what is required is the publisher’s specific seditious K intent, the prosecution also submitted that it was not necessary to prove K that the publisher had all of the seven seditious intentions under Section L L 9(1), and that it was only necessary to prove at least one of them. M M 151. In addition, the prosecution pointed out that the words such as N N “hatred”, “contempt”, “disaffection” and “discontent” in section 9(1) were O not further defined in the law. In applying the provision, the court is only O required to assess whether the publications have seditious intentions by P P considering the relevant words in ordinary daily usage. The court is also Q required to take into account all the circumstances surrounding the Q publications in question, including the overall context, the target audience, R R the state of the society at the time of the offence and the public sentiments. S The purposes and the preventive nature of the offence of publishing S 56 T Paragraphs 73 to 80 of the judgment T 57 Paragraph 25 of the prosecution’s closing submission on 29 May 2023 U U V V  - 76 - A A B B seditious publications should also be considered. Such purposes are the C protection of national security and the maintenance of public order (ordre C public), such as preventing violence or disturbance arising from D D interference with the normal operation of governmental institutions. E E (Constitutional and legal arguments raised by the defence) F F G 152. The constitutional and legal arguments put forward by the G defence (D2 and D3) on the offence of publishing seditious publications H H are set out below: I I (1) Article 27 of the Basic Law and Article 16 of the Hong Kong J J Bill of Rights, as set out in section 8 of the Hong Kong Bill of K Rights Ordinance 58 protect freedom of speech (including K freedom of the press and of publication) without restriction, L L unless the relevant restriction is prescribed by law 59 and is M proportionate to the purpose of the restriction (i.e. the M principle of proportionality)60 . N N O (2) The purposes of any restrictions must be for the respect of the O rights or reputations of other persons; or for the protection of P P national security, public order (ordre public), public health or Q moral61. As to whether or not the restrictions are proportionate Q R R 58 S Chapter 383 of the Laws of Hong Kong S 59 Article 39 of the Basic Law 60 T Chow Nok Hang (2013) 16 HKCFAR 837 T 61 Article 16 of the Hong Kong Bill of Rights U U V V  - 77 - A A B B to their aims, two aspects have to be considered, namely C systemic proportionality and operational proportionality. C D D (3) The restrictions must also be in accordance with the principle E of legal certainty to be regarded as prescribed by law. E F F (4) The defence accepted that the offence of publishing seditious G publications is for the protection of national security, but G argued that by considering the relevant words in ordinary H H daily usage while applying section 9(1) of the Crimes I Ordinance, as pointed out by the prosecution in paragraph 151 I above, the restriction on freedom of speech would not be in J J compliance with the principle of legal certainty, because the K literal meanings of those words such as “hatred”, “contempt”, K “disaffection” and “discontent” in the provision render the L L definitions of the seditious intentions vague and subjective, M and the scope of application is also overbroad and arbitrary. M The defence therefore argued that there must be certain N N requirements limiting the extent of those words. O O (5) The defence agreed with my judgment in Lai Man Ling that P P an intention of incitement to violence is not a necessary Q element of the offence of sedition. However, citing the Q relevant authorities62, the defence argued that the prosecution R R still had to prove that the relevant publications and the S S T 62 The defence cites cases such as Boucher v The Queen [1951] SCR 265, Lai Man Ling [2022] 4 T HKLRD 657, etc. U U V V  - 78 - A A B B publisher had the intentions to incite the people to create a C public disturbance or disorder against constituted authority63. C D D (6) In addition, the defence is of the view that the offence of E publishing seditious publications requires that the actus reus E constitutes a real risk to national security, because if there is F F no real risk to national security, the restriction on freedom of G speech would become unreasonable and unnecessary, and G would not be in accordance with the principle of systemic H H proportionality. I I (7) Finally, in the light of operational proportionality, the defence J J is of the opinion that the court has to consider the overall K circumstances, and whether or not the Defendants’ freedom K of speech and freedom of the press will be disproportionately L L restricted if the Defendants are convicted. M M 153. Subsequent to the defence putting forward the above N N arguments, the Court of Appeal handed down the judgment in HKSAR v O Tam Tak Chi [2024] HKCA 231 on 7 March 2024, in which it was held O that the relevant words in section 9(1) of the Crimes Ordinance are in P P conformity with the principle of legal certainty, having considered various Q local and overseas cases. The Court of Appeal also confirmed the ruling on Q the offence of publishing a seditious publication in Fei Yi Ming [1952] 36 R R HKLR 133, that is, the prosecution is not required to prove that the S publisher has the intention of incitement to violence. S T 63 Paragraphs 27 to 31 of the closing submission of D2 and D3, and paragraphs 15 to 26 of the T supplementary closing submission U U V V  - 79 - A A B B C 154. The defence argued that Tam Tak Chi does not resolve all the C constitutional and legal issues raised above, and the court still needs to D D adopt a remedial interpretation in order to uphold the constitutionality of E the offence of publishing seditious publications, meaning that the offence E includes the following elements which the prosecution must prove: (1) that F F the publisher has a specific seditious intent, i.e. having the seditious G intentions as stated in section 9(1); and (2) the publishing of the relevant G publications constitutes a real risk to national security. The defence also H H maintains the view that operational proportionality applies to the present I case. Moreover, it is argued that in view of the particular facts of the case, I freedom of speech and of the press would be disproportionately restricted J J if the court were to find D2 and D3 guilty. K K (Proper application of section 9(1)) L L M 155. The Court of Appeal in Tam Tak Chi ruled that the relevant M words in section 9(1) of the Crimes Ordinance satisfied the principles of N N legal certainty, and could be regarded as prescribed by law, satisfying the O requirement of proportionality, and were therefore constitutional and did O not contravene the Basic Law and the Hong Kong Bill of Rights 64. The P P Appeal Committee of the Court of Final Appeal also affirmed the Court of Q Appeal’s ruling, refusing to grant leave to appeal on whether or not the Q requirements of legal certainty and proportionality in relation to sections 9 R R and 10 were satisfied (HKSAR v Tam Tak Chi [2024] HKCFA 25). S S T T 64 HKSAR v Tam Tak Chi [2024] HKCA 231 paragraphs 120 and 131 U U V V  - 80 - A A B B 156. The offence of publishing seditious words under section C 10(1)(b) in Tam Tak Chi, like the offence of publishing seditious C publications under section 10(1)(c) in the present case, involves seditious D D intentions as defined in section 9(1). The Court of Appeal pointed out in E paragraph 119 of the judgement that the following factors must be taken E into account in understanding the relevant words: F F “(1) By their very nature, some aspects of the offence of G G sedition are not capable of a precise definition. That said, to avoid unjustifiable interference with the freedom of H expression, the offence must set clear parameters for H what is seditious and what is not. Clarity of course does not mean rigidity. As will be elaborated below, a I sufficient degree of adaptive flexibility is necessary for I the offence to be effective and responsive to meet the J risks or threats to national security that the society is J facing at the time. K (2) Words are not spoken in vacuum and cannot be K understood in abstract. They must be understood against the contemporaneous socio-cultural and political setting L of society. Thus, words which were innocent in the past L may have become offensive now with the change in the M state of society, public attitude or feelings generally or M towards a particular subject matter. Words which a society finds acceptable may be repugnant to another N with a different cultural heritage or political setting. N Accordingly, to be effective, sedition offences must be sensitive to time, issue and context in which the words O O are spoken. They must be flexible enough to cope with the change in time and circumstances, such as societal P evolution or political climate. P (3) Very often, words can set events into action. Seditious Q words may potentially lead to seditious acts or activities Q endangering national security, public order or safety. In R punishing dissemination of seditious words, the offence R aims at avoiding such potential detrimental consequences, which is imperative in safeguarding S national security. S (4) With rapid technological advances and diversity and ease T T in communications, the offence must have the flexibility to keep pace.” U U V V  - 81 - A A B B 157. The Court of Appeal further explained in paragraph 123 of the C C judgment: D D “123. ... When used in defining a seditious intention in section E 9(1): E F (1) “hatred” connotes a strong sense of hostility or aversion F towards the government or the administration of justice (section 9(1)(a) and (c)). G G (2) “contempt” refers to open, defiant disobedience or disrespect of the legitimacy or lawful authority of the H H government or administration of justice in Hong Kong (section 9(1)(a) and (c)). I I (3) “disaffection” refers to provoking, stimulating or implanting a feeling or view to oppose the legitimacy or J authority of the government, the administration of justice or to J antagonise the inhabitants (section 9(1)(a), (c) and (d)). K K (4) “discontent” refers to provoking, stimulating or implanting a feeling of resentment amongst the inhabitants L (section 9(1)(d)). L (5) “feelings of ill-will and enmity” refers to provoking, M stimulating or implanting animosity between different classes of M the population of Hong Kong (section 9(1)(e)). N N Put in brief terms, they aim at prohibiting words which, objectively understood, have the intention of (1) seriously O undermining the legitimacy or authority of the Central People’s O Government, the HKSAR Government and their institutions; the constitutional order or status of the HKSAR; and the P P administration of justice in Hong Kong; and (2) seriously harming the relationship between the Central People’s Q Government or the HKSAR Government with Hong Kong Q inhabitants; and the relationship among Hong Kong inhabitants.” R R 158. In short, the Court of Appeal held that those words such as S ‘hatred’, ‘contempt’, ‘disaffection’ and ‘discontent’ in section 9(1) cannot S be applied in a vacuum, and that the actual circumstances of the case as a T T whole must be considered (including the context of the relevant time U U V V  - 82 - A A B B period), in particular, the legislative purpose of the offence, namely C avoiding potential detrimental consequences to national security or public C order and safety caused by seditious speeches. The same speech may have D D different effects in different social, cultural and political settings or with E different public sentiments. E F F 159. With regard to the defence submission that there should be G certain requirements limiting the extent of the relevant words, the Court of G Appeal pointed out in paragraph 123 of the aforesaid judgment that the aim H H of section 9(1) is to prohibit such speeches which, objectively understood, I have the intention of: (1) seriously undermining the legitimacy or authority I of the Central Authorities or the SAR Government and their institutions, J J the constitutional order or status of the HKSAR; and the judicial system in K Hong Kong; and (2) seriously harming the relationship between the Central K Authorities or the SAR Government with Hong Kong inhabitants; and the L L relationship among Hong Kong inhabitants. I am of the view that, as M demonstrated in the judgment of the Court of Appeal, the required extent M of the relevant words is “seriously” undermining or harming. As such, they N N are not overbroad or arbitrary. In other words, only those speeches which O are intended to stir up public sentiments, and to cause the public to develop O a “strong” sense of hostility, aversion, disobedience, disrespect, contempt, P P alienation, or discontent towards the Central Government, and/or the SAR Q Government, and/or their institutions, so as to incite, induce, or mislead Q others to deny or question the legitimacy or authority of the regime and the R R government, or to reject or question the existing constitutional order or S status, or speeches which are intended to seriously harm the relationship S between the above parties will be ruled as speeches having seditious T T intentions. U U V V  - 83 - A A B B C 160. The Court of Appeal ruled that the offences set out in sections C 9 and 10 of the Crimes Ordinance are prescribed by law, and therefore the D defence’s arguments that the literal meanings of those words such as D E “hatred”, “contempt”, “disaffection” and “discontent” render the E definitions of the seditious intentions vague and subjective, and that the F F scope of application is overbroad and arbitrary, naturally fail. G G (Section 9(2) not applicable where the intention is to seriously undermine H H government authority) I I 161. The Court of Appeal went on to state in paragraph 124 of the J J judgment that section 9(1) must be read together with section 9(2). Section K 9(2) set out four sets of circumstances in which there was no seditious K intention. L L M “(2) An act, speech or publication is not seditious by reason M only that it intends - N (a) to show that [the Central Authorities or the SAR N Government] has been misled or mistaken in any of [their] measures; or O O (b) to point out errors or defects in the government or P constitution of Hong Kong as by law established, or in P legislation or in the administration of justice with a view to the remedying of such errors or defects; or Q Q (c) to persuade … inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter in R R Hong Kong as by law established; or S (d) to point out, with a view to their removal, any matters S which are producing or have a tendency to produce feelings of ill-will and enmity between different classes T of the population of Hong Kong.” T U U V V  - 84 - A A B B 162. The Court of Appeal pointed out that when sections 9(1) and C (2) are properly read together with the fundamental right to free expression, C they make it plain that criticising the government, the administration of D D justice including judgments of the court, or engaging in debates about or E raising objections to government policies or decisions, however strong, E vigorous or critical they may be, do not constitute seditious intention; and F F that it provided further clarity in differentiating between lawful and G unlawful speech. G H H 163. In Lai Man Ling, I held that the prosecution had to prove not I only that the alleged seditious intention was within one or more of the I seven limbs stated in section 9(1), but also that the alleged intention was J J not within any limb stated in section 9(2). There is no dispute between the K prosecution and the defence on this point. K L L 164. I agree that, in accordance with section 9(2), pointing out M errors in government measures, constitution, legislation or the M administration of justice, or even persuading Hong Kong inhabitants to N N procure by lawful means the alteration of matters as by law established O with a view to the remedying of such errors or defects would not constitute O any seditious intention. On the other hand, I consider that section 9(2) is P P clearly not applicable to speeches lacking an objective factual basis but Q having the intention of seriously undermining the authority of the Central Q Authorities or the SAR Government and so on. R R S (Whether an intention to incite public disturbance or disorder is an element S of the offence) T T U U V V  - 85 - A A B B 165. The Court of Appeal held in Tam Tak Chi that as the offence C of sedition under sections 9 and 10 of the Crimes Ordinance was the C successor to the offence created by the Sedition Ordinance 1938, it was a D D statutory offence rather than a common law offence of sedition. Incitement E to violence, a necessary element of the common law offence of sedition, E was excluded by the legislature when the statutory offence was created in F F 1938. Therefore, incitement to violence was not an element of the statutory G offence of sedition. The intention “to incite persons to violence” in section G 9(1)(f) of the Crimes Ordinance was added as a new seditious intention H H when the ordinance was amended in 1970: see paragraphs 63 to 82 of the I judgment. I J J 166. The defence submitted that notwithstanding the Court of K Appeal’s aforesaid decision, the prosecution still had to prove that both the K publication and the publisher had the intention to incite public disturbance L L or disorder against constituted authority. The defence argument was that M when the British colonial government introduced in 1938 the Sedition M Ordinance 1938 and the Prohibited Publication Ordinance 1938, it was N N clear that the Bills were drafted as directed by the Secretary of State of the O British Government, based upon a model. By codifying the common law O offence of sedition, the British Government drafted the Model Sedition P P Law and introduced it into different colonies. As a result, there were great Q similarities in sedition laws across different colonies. The defence argued Q that the sedition laws of Hong Kong were basically copied wholesale from R R the British Model Sedition Law rather than being drafted according to S Hong Kong’s unique circumstances. This showed that the Legislative S Council of Hong Kong did not intend to depart from the requirements in T T common law when enacting sedition laws. On the other hand, apart from U U V V  - 86 - A A B B incitement to violence, the definition of the common law offence of C sedition also included incitement to public disturbance or disorder. The C defence cited Boucher v R [1951] SCR 265, 283 for the definition of the D D common law offence of sedition: E E “The intention on the part of the accused which is necessary to F constitute seditious libel must be to incite the people to violence F against constituted authority or to create a public disturbance or disorder against such authority.” G G 167. As the Court of Appeal ruled in Tam Tak Chi that the elements H H of the common law offence of sedition were not applicable to the statutory I offence of sedition in Hong Kong, I must reject the defence submission. I J J 168. In addition, I also disagree with the defence submission. K According to the legislative records of the Sedition Ordinance 1938, even K though reference was made to the Model Sedition Law issued by the British L L Government, the ordinance was tailor-made for Hong Kong. The minutes M of the meeting of the Hong Kong Legislative Council on 28 July 1938 M contained the following record: N N O “The ATTORNEY GENERAL moved the first reading of a Bill O intituled “An Ordinance to make better provision for the prevention and punishment of sedition”. He said: This Bill and P P the next Bill on the agenda replace the present law relating to this subject and it has been thought desirable for that reason to set out Q the differences between the old law and the new in greater detail Q than usual in a table of correspondence attached to the Bill.” R R 169. By “the next Bill on the agenda”, the Attorney General S referred to the Prohibited Publication Ordinance 1938. He also stated that S the legislative intent was to “replace” the then-existing law on sedition with T T these two ordinances. The first point in the “Objects and Reasons” section U U V V  - 87 - A A B of the Bill stated: “This Bill is based upon a model Ordinance compiled by B C direction of the Secretary of Secretary” (i.e. the Model Sedition Law C referred to by the defence). The third point stated: “Tables are appended D D hereto showing the variations between the Model and this Bill and E comparing the provisions of the Bill and the law relating to the importation E into this Colony of seditious or undesirable literature as contained in the F F Seditious Publications Ordinance, 1914, the Importation and Exportation G Ordinance, 1915, the Post Office Ordinance 1926, and the regulations G under the Emergency Regulations Ordinance, 1922.” H H I 170. The contents of the table attached to the Bill comparing the I then-existing law with the Bill were as follows: J J TABLE OF CORRESPONDENCE K BETWEEN K Provisions of this Bill and the law previously in force. L L (1) Common Law M Existing Law Corresponding matter (if any) in draft M Bill. N The class definition of sedition The definitions of “seditious N expounded by Stephen J. may be taken to publications”, “seditious words” be an authoritative exposition of the (clause 2) and “seditious intention” O position at common law. (clause 3) follow Stephen J’s definition O very closely. Sub-clause 1 (vi) however is an addition. The question of seducing P P members of His Majesty’s forces from their allegiance, which does not come Q within the purview of common laws Q definition of sedition, has been recently dealt with by statute in England, R (Incitement to Disaffection Act, 1934) R and it would appear to be desirable to S make similar provisions here. S Seditious libel and seditions utterances. This matter is dealt with by clause 4. This clause, in addition, makes it an offence to T print, publish, import, possess, etc., T seditious literature. These offences are U U V V  - 88 - A A B ancillary to the crime of sedition and it B seems desirable to make statutory C provision for them in this Bill. C There are no conditions attached to Under the Bill the prosecution must be prosecution at common law. commenced within 6 months, the written D consent of the Attorney General must be D obtained and there must be corroboration (clause 5 and 6). E E There is no search warrant at common Clause 7 makes provision for issuing law. search warrants. F F (2) Seditious Publications Ordinance, 1914. G G Existing Law Corresponding matter (if any) in draft Bill. H It is an offence under sections 3A and 4 Clause 3 of the Bill makes it an offence to H of this Ordinance to possess, print, possess, print, publish, etc., seditious publish, sell, distribute, etc., publications publications. These provisions supersede I I containing seditious matter. the provisions of sections 3A and 4 of the existing Ordinance and render them J unnecessary. J Seditious matter is defined in section 2; it The Bill defines in statutory language includes in addition to seditious matter what has always been understood by that K properly so called such things as “putting term; it is, in consequence, more limited K a person in fear, thereby inducing him to in its scope than the existing Ordinance, L hand over property”, “conveying threats which appears to be wide enough to cover L to a public servant”, etc. cases of blackmail and other matters far removed from sedition proper. It is M proposed to supersede the existing law on M this matter by the present Bill. Power of Superintendent of Imports and Clause 7 authorizes the issue of search N N Exports and Postmaster General to detain warrants. The Superintendent of Imports packages containing seditious matter and Exports and Postmaster General are O (sections 5 and 6) and search warrant given special powers of search under O (section 9). another Bill relating to importation of seditious literature. The combined effect P of these two bills should make it P unnecessary to retain sections 5 and 6 of Q this Ordinance. Q Power of Governor in Council to declare Forfeiture under the Bill is only after a certain publications forfeit (sec. 3) and conviction (clause 4). It should be R appeal to Supreme Court (secs. 7 and 8). unnecessary to retain these provisions if R this Bill and the Bill relating to importation of seditious literature become S S law. T (3) Emergency Regulations, 1931. T U U V V  - 89 - A A B Reg. 19 makes it an offence to promote a Clauses 4(1) makes it an offence to do B general strike, disorder of any kind or the any act with a seditious intention. This C spread of sedition. provision would appear to render C regulation 19 unnecessary. D D 171. As clearly shown by the table, when the Secretary of State E directed the drafting of the Model Sedition Law, the definition of the E common law offence of sedition was based on the definition expounded by F F Stephen J instead of the definition in Boucher (which was decided on 18 G December 1950). The Bill stated that the meaning of “sedition” in the Bill G “follow[ed] Stephen J’s definition very closely”, implying that it was not H H exactly the same as the definition in common law. As also illustrated by I the table, the intention “to endeavour to seduce any member of His I Majesty’s forces from his duty or allegiance to His Majesty”, which did J J not come within the purview of the common law offence of sedition, was K also added as a limb of seditious intention in clause 3(1)(vi) of the Bill to K bring the Bill on a par with the Incitement to Disaffection Act 1934 of the L L United Kingdom. As shown by the table, the Bill dealt with the offence of M sedition by consolidating all the then-existing laws in 1938, including the M common law, the Seditious Publication Ordinance 1914, and the relevant N N parts of the Emergency Regulations 1931. The Bill also included the time O limit for prosecution and the issue of search warrants, which were not O found in the common law. P P Q Q 172. The 1938 Bill was passed and became the Sedition Ordinance R 1938. The following list shows the similarities and differences between the R definitions of the statutory offence of sedition (including the Sedition S Ordinance 1938 and the Crimes Ordinance) and Stephen J’s definition of S T the common law offence of sedition (recorded in Article 93 (Seditious T U U V V  - 90 - A A B Intention Defined), in A Digest of the Criminal Law, 3 rd Edition, London, B C MacMillan and Co. (1883) by Sir James Fitzjames Stephen): C D D The common law The Sedition Ordinance, The Crimes Ordinance definition of sedition by 1938 (Cap. 200) at the time of E Stephen J* (2nd September 1938) the alleged offence E A seditious intention is an intention to bring into hatred or to bring into hatred or to bring into hatred or F F contempt, or to excite contempt or to excite contempt or to excite disaffection against the disaffection against the disaffection against the G person of, Her Majesty, person of His Majesty, person of Her Majesty, G her heirs or successors, His heirs or successors, Her Heirs or or the government and or the Government of Successors, or against H constitution of the the Colony as by law the Government of H United Kingdom, as by established [section Hong Kong, or the I law established, or 3(1)(i)]; or government of any I either House of other part of Her Parliament, or the (This subsection was Majesty's dominions or J administration of amended on 23 of any territory under J justice; or December 1938 by the Her Majesty's Sedition Amendment protection as by law K K Ordinance 1938 to read established [section “to bring into hatred or 9(1)(a)]; or L contempt or to excite L disaffection against the person of His Majesty, M His heirs or successors, M or against the N Government of this N Colony, or the Government of any O other part of His O Majesty's dominions or of any territory under P P His Majesty's protection as by law Q established”). Q to bring into hatred or to bring into hatred or contempt or to excite contempt or to excite R disaffection against the disaffection against the R administration of justice administration of justice in the Colony [section in Hong Kong [section S S 3(1)(iii)]; or 9(1)(c)]. T T U U V V  - 91 - A A B to excite Her Majesty's to excite His Majesty's to excite Her Majesty's B subjects to attempt, subjects or inhabitants subjects or inhabitants C otherwise than by of the Colony to of Hong Kong to C lawful means, the attempt to procure the attempt to procure the alteration of any matter alteration, otherwise alteration, otherwise D in Church or State by than by lawful means, than by lawful means, D law established, or of any other matter in of any other matter in the Colony as by law the Colony as by law E E established [section established [section 3(1)(ii)]; or 9(1)(b)]; or F to incite any person to [not adopted] [not adopted] F commit any crime in disturbance of the G peace, or G to raise discontent or to raise discontent or to raise discontent or H disaffection amongst disaffection amongst disaffection amongst H Her Majesty's subjects, His Majesty's subjects Her Majesty's subjects or or inhabitants of the or inhabitants of Hong I Colony [section Kong [section 9(1)(d)]; I 3(1)(iv)]; or or to promote feelings of to promote feelings of to promote feelings of J J ill-will and hostility ill-will and hostility ill-will and enmity between different between different between different K classes of such subjects. classes of the classes of the K population of the population of Hong Colony [section Kong [section 9(1)(e)]; L 3(1)(v)]; or or L [no provision] to endeavour to seduce [no provision] M any member of His M Majesty's forces from his duty or allegiance to N His Majesty [section N 3(1)(vi)]. ** O to incite persons to O violence*** [section 9(1)(f); or P to counsel disobedience P to law or to any lawful order*** [section Q Q 9(1)(g)]. R R * Article 93 (Seditious Intention Defined), in A Digest of the Criminal Law, 3rd Edition, London, MacMillan and Co. (1883) by Sir James Fitzjames Stephen, S available in High Court Library, HKSAR. S ** Repealed on 23rd December 1938 by the Sedition Amendment Ordinance, 1938. T T *** Added to the Crimes Ordinance by the Sedition (Amendment) Ordinance 1970 on 12 March 1970. U U V V  - 92 - A A B B C 173. As shown by the comparison, one of the limbs of seditious C intention in Stephen J's definition of the common law offence of sedition D was “to incite any person to commit any crime in disturbance of the peace”, D E which was clearly not replicated in the statute of Hong Kong when the E statutory offence of sedition was created under the Sedition Ordinance. F F This shows that the colonial government did not consider incitement to G violence or disturbance or disorder to be a necessary element of the G statutory offence of sedition, or else it would have expressly retained H Stephen J’s definition in the ordinance. This must have been the legislative H I intent because the Prohibited Publication Ordinance 1938, enacted at the I same time as the Sedition Ordinance 1938, authorised the Governor of J J Hong Kong, in his absolute discretion, to prohibit the importation of any K publication contrary to the public interest into Hong Kong: see sections 2 K and 3 of the ordinance. Whether or not the imported publication would L L incite violence was not a statutory consideration. Given this legislative M background, it would be even more unlikely that the Sedition Ordinance M 1938 had an implied term to include the intention to incite violence or N N disturbance or disorder as a necessary element of the offence of sedition. O This obviously was also one of the reasons why it was necessary to add the O intention “to incite persons to violence” as a new limb of seditious intention P P in the ordinance in 1970. Q Q 174. Therefore, even without the Court of Appeal’s judgment, I R R would have rejected the defence submission. S S (Real risks to national security) T T U U V V  - 93 - A A B B 175. The Court of Appeal pointed out that safeguarding national C security must be balanced against the protection of fundamental rights such C 65 as freedom of speech and freedom of publication . To satisfy the principle D D of proportionality, the speech constituting the offence must be potentially E detrimental to national security, public order and safety in the relevant E context. F F G 176. In other words, when a speech is assessed as having seditious G intentions, the relevant actual circumstances must have been taken into H H account, and the speech must have been deemed thereunder to be I potentially detrimental to national security and has to be stopped. In I addition, the intention concerned is the intention to seriously undermine J J the legitimacy or authority of the Central Authorities or the SAR K Government, etc. The Court of Appeal stated in paragraph 127 of Tam Tak K Chi that it was irrelevant whether the audience were so incited by the L L seditious speech. Therefore, as long as the relevant speech or publication M is found to have the seditious intentions under section 9(1), I find that there M is no need to separately consider whether the speeches constitute any real N N risks to national security. O O (Publisher must have a specific intent or must be reckless about the P P consequences) Q Q 177. In Tam Tak Chi, the trial judge ruled that the defendant had R R specific seditious intent. The Court of Appeal therefore did not find it S S T T 65 HKSAR v Tam Tak Chi [2024] HKCA 231, part C3.1 of the judgment U U V V  - 94 - A A B B necessary to decide whether the offence required the publisher to have C specific seditious intent (i.e. specific intent)66. C D D 178. In Lai Man Ling, I ruled that apart from the publication having E a seditious intention of section 9(1), the prosecution also had to prove that E the publisher himself had a seditious intention of section 9(1). However, F F the publisher did not need to have seditious intentions mirroring exactly in G every respect those of the seditious publication so long as he shared at least G one of the same seditious intentions: see paragraphs 73 to 78 of the H H judgment. In other words, in Lai Man Ling, I ruled that the offence of I publishing seditious publications was an offence of specific intent. I J J 179. In the present case, the prosecution took the view that the K requisite mens rea was the publisher’s knowledge of the article’s seditious K intent. According to the prosecution’s stance, the publisher could still be L L guilty of the offence without specific seditious intent, or even if there was M no contemplation of any seditious effect. The defence submitted that the M ruling of Lai Man Ling was correct. My rulings in previous cases are not N N binding and I must decide this issue again in the light of the submissions O of the prosecution and the defence in this case and in the light of all the O additional authorities. P P Q 180. Sections 9 and 10 of the Crimes Ordinance are unclear as to Q whether the publisher must have a seditious intention. In Kulemesin v R R HKSAR (2013) 16 HKCFAR 195, the Court of Final Appeal said in S paragraph 38 of its judgment: S T T 66 HKSAR v Tam Tak Chi [2024] HKCA 231 para 160 U U V V  - 95 - A A B B “38. As pointed out in that judgment, where the offence- C C creating provisions are silent or ambiguous as to the mental requirements, the starting-point is that the statute must be D construed adopting the presumption that it is incumbent on the D prosecution to prove mens rea in relation to each element of the offence (Hin Lin Yee at §§40-41). In other words, the court E presumes that the prosecution must prove that the accused E possessed the state of mind appropriate to each external element F of the offence. Thus, if a specified circumstance is required to F accompany the defendant's act or omission as a prescribed ingredient of the offence, the presumption is that the prosecution G must prove that the defendant knew of or was reckless as to the G existence of that circumstance. And if it is a necessary element of the offence that the impugned conduct causes certain H H prohibited consequences, it is presumed that the prosecution must prove that when acting or omitting to act, the defendant I intended to cause or was reckless as to his causing those I consequences (Hin Lin Yee at §42).” (Underline added) J J 181. For the three reasons relied upon by me in Lai Man Ling, K namely: (1) In general, when interpreting a statute, the common law K presumes that the mens rea of an offender is necessary for conviction, and L L the prosecution failed to show that this presumption had been rebutted; (2) M the old provisions assisting the prosecution to prove the mens rea of an M offender were repealed in 1970, and they were repealed not for the reason N N of doing away with the burden of proof being imposed on the prosecution, O but to require the prosecution to prove on their own the offender’s intention O unaided by any statutory presumption; and (3) in Fei Yi Ming, when the P P trial judge directed the jury, he also asked them to consider the publisher’s Q intention. It is still my view that a publisher must have a specific intent Q before he can be convicted. I am also of the view that the prosecution's R R position fails to adequately protect fundamental rights such as freedom of S speech and freedom of publication. S T T U U V V  - 96 - A A B B 182. On the other hand, the Court of Appeal made it clear in Tam C Tak Chi, at paragraph 119(3), that “Very often, words can set events into C action. Seditious words may potentially lead to seditious acts or activities D D endangering national security, public order or safety. In punishing E dissemination of seditious words, the offence aims at avoiding such E potential detrimental consequences, which is imperative in safeguarding F national security.” A sedition offence is therefore an offence targeted F G against the consequences of the crime. Given such circumstances, in G accordance with the principles laid down in Kulemesin mentioned above, H H taking into account the fact that the offence of publishing seditious I publications is intended to prevent speech from causing potential I detrimental consequences to national security, I am of the view that the J J earlier decision in Lai Man Ling, whereby a publisher is guilty only if he K has the specific seditious intent, is ineffective in safeguarding national K security. This is because even if a publisher is reckless as to the L L consequences of sedition, as long as there is no specific seditious intent, he M cannot be found guilty, thus defeating the law’s preventive nature. M N N 183. On reconsideration, I consider that the appropriate balance is O to require the prosecution to prove either that the publisher had the O seditious intentions (specific seditious intent) of section 9(1) at the time of P P publishing seditious publications, or that the publisher knew at the time of Q publishing that the seditious publications had the seditious intentions of Q section 9(1) but was reckless as to the consequences and still published R R them (reckless as to the consequences of sedition). I also repeat the ruling S in Lai Man Ling that a publisher does not need to have exactly the same S seditious intentions mirroring those of the seditious publications, and that T T only at least one being the same will do. I rule that the offence of sedition U U V V  - 97 - A A B B is an offence of specific intent, and that specific intent means that a C publisher who publishes seditious publications with specific seditious C intent, or is reckless about the consequences of seditions and knowingly D D takes the risk, will be held liable. This principle would not only safeguard E national security effectively but also properly protect those fundamental E rights such as freedom of speech and freedom of publication. F F G (Operational proportionality) G H H 184. I am of the view that when a speech, in the relevant context, I is assessed to be causing potentially detrimental consequences to national I security, and having the intention of seriously undermining the authority J J of the Central Authorities or the SAR Government, and thus has to be K stopped, the resulting conviction would as a matter of course be in line with K the operational proportionality principle, and therefore no further L L considerations will be required. The Court of Final Appeal in HKSAR v Ng M Ngoi Yee & ors [2024] HKCFA 24 also affirmed that when a court applies M provisions that are constitutionally valid when considering whether a N N defendant is guilty, there is no need to consider separately whether the O conviction is in accordance with the principle of operational O proportionality67. P P Q 185. In Tam Tak Chi, the Appeal Committee of the Court of Final Q Appeal also affirmed the decision of the Court of Appeal in not granting R R leave to appeal on this ground of appeal in relation to the requirements of S S T T 67 See HKSAR v Ng Ngoi Yee & ors [2024] HKCFA 24, parts L.3 and L.6 of the judgment U U V V  - 98 - A A B B legal certainty and proportionality in respect of sections 9 and 10: [2024] C HKCFA 25. C D D 186. For the above reasons, I ruled that the defence failed on the E constitutionality challenges, whereas the prosecution was required to prove E that the defendants had the specific intent mentioned above in order to F F secure a conviction. G G 187. As D1 is an online media, D2 and D3 are journalists, and the H H charge alleges that they conspired to publish seditious publications, this I case also involves freedom of the press. However, legal provisions I protecting and restricting press freedom are identical to those protecting J J and restricting freedom of speech. The legal principles of the offence of K sedition set out above are therefore fully applicable. K L L 188. Regarding the duties and roles of the press, the defence set out M in section F.2 of their written closing submission the principles and cases M of the European Court of Human Rights (ECtHR) which they considered N N important, pointing out that the media had a duty to disseminate O information and views on matters of public interest. They also stressed that O this was not only about the duty of the media, but also about the right of P P the public to have access to such information and views; otherwise the Q press could not play its role as a fourth power to monitor the government. Q The defence also cited the “BBC Editorial Guidelines” 68 , “Council of R R Europe Resolutions 1003 (1993)” 69 , the Hong Kong Journalists S S 68 T Exhibit D2(8) T 69 Exhibit D2(169) U U V V  - 99 - A A B Association (HKJA) - Code of Ethics 70 , the Hong Kong Journalists B C Association (HKJA) - Code of Professional Conduct for Journalist 71, and C the Hong Kong News Executives’ Association (HKNEA) – Code of D D Conduct72, and set out some of the principles. E E 189. In my view, when considering the publication of speeches, F F information and articles by the media and its workers, the only restrictions G they must observe and discharge are “special duties and obligations”, G including “safeguarding national security or public order (ordre public), or H public health or morals”: Article 16(3) of the Hong Kong Bill of Rights, H I and Article 19(3) of the International Covenant on Civil and Political I Rights (ICCPR). There is no statutory requirement under the Laws of Hong J J Kong for the media to comply with any professional codes, nor is there a K law restricting the media from becoming a political or advocacy platform, K but any speech or publication that endangers national security or public L L order will be restricted. M M 190. The prosecution and the defence cited a large number of cases N N of the European Court of Human Rights (ECtHR) to illustrate the duties O and responsibilities of the media, in particular those of editors. I found that O the “Guide on Article 10 of the European Convention on Human Rights – P P Freedom of Human Rights (updated on 31 August 2022)” prepared by the Q European Council provides a brief but appropriate summary: Q R R “2. Duties and responsibilities which relate to editorial decision-making S S 70 Exhibit P39(1) 71 T Exhibit P39(2) T 72 Exhibit P39(3) U U V V  - 100 - A A B B 326. The duties and responsibilities which relate to editorial C decision-making are also covered by concepts such as C journalistic “ethics” or “professional codes” or by that of “responsible journalism”. Elements related to these D D duties and responsibilities interact with other criteria used in the Court’s assessment and are also covered in E other chapters of this Guide. However, it is appropriate E to summarise the main points here. F F 327. With regard to journalistic freedom, the Court has always assessed the scope of these “duties and responsibilities” G in the light of the leading role played by the press in a G State governed by the principle of the rule of law (Thorgeir Thorgeirson v. Iceland, § 63). H H 328. In spite of the essential role of the press in a democratic society, paragraph 2 of Article 10 does not guarantee a I I wholly unrestricted freedom of expression even with respect to press coverage of matters of serious public J concern (Bladet Tromsø and Stensaas v. Norway [GC], § J 65; Monnat v. Switzerland, § 66). K 329. The Court considers that the safeguard afforded by K Article 10 to journalists in relation to reporting on issues L of general interest is subject to the proviso that they are L acting in good faith and on an accurate factual basis and provide “reliable and precise” information in accordance M with the ethics of journalism (Axel Springer AG v. M Germany [GC], § 93; Bladet Tromsø and Stensaas v. Norway [GC], § 65; Pedersen and Baadsgaard v . N N Denmark [GC], § 78; Fressoz and Roire v. France [GC], § 54; Stoll v. Switzerland [GC], § 103; Kasabova v. O Bulgaria, §§ 61 and 63-68; Sellami v. France, §§ 52- 54; O for an indication by the Court that the same principle must apply to others who engage in public debate, see P Steel and Morris v. the United Kingdom, § 90). P Q 330. These conditions are also described as acting “in Q accordance with the tenets of responsible journalism” (Bédat v. Switzerland [GC], § 50; Pentikäinen v. Finland R [GC], § 90). R 331. These considerations play a particularly important role S S nowadays, given the influence wielded by the media in contemporary society: not only do they inform, they can T also suggest by the way in which they present the T information how it is to be assessed. In a world in which U U V V  - 101 - A A B the individual is confronted with vast quantities of B information circulated via traditional and electronic C media and involving an ever-growing number of players, C monitoring compliance with journalistic ethics takes on added importance (Stoll v. Switzerland [GC], § 104).” D D 191. Paragraph 329 of the above summary is obviously the most E E important. It states that the protection afforded by Article 10(2) of the F ECHR to journalists in reporting matters of general interest should be F subject to the condition that they must “act in good faith and on accurate G G factual basis and provide ‘reliable and precise’ information in accordance H with the ethics of journalism”. H I I 192. The defence cited Council of Europe Resolutions 1003 (1993) J Ethics of Journalism” 73 . Paragraph 4 therein stresses the importance of J verification of facts and impartiality. K K L “4. News broadcasting should be based on truthfulness, L ensured by the appropriate means of verification and proof, and impartiality in presentation, description and narration. Rumour M must not be confused with news. News headlines and summaries M must reflect as closely as possible the substance of the facts and N data presented.” N O 193. In addition, there must be a sufficient factual basis even for a O value judgement: Feldek v Slovakia (Application no. 29032/95) P P (12/07/2001). Q Q “76. Where a statement amounts to a value judgement, the R proportionality of an interference may depend on whether there R exists a sufficient factual basis for the impugned statement, since even a value judgement without any factual basis to support it S S may be excessive ....” T T 73 Exhibit D2 (169) U U V V  - 102 - A A B B 194. It is worth noting that modern propaganda does not rely on a C pack of lies but a mix of different kinds of truth. C D “Modern propaganda has long disdained the ridiculous lies of D past and outmoded forms of propaganda. It operates instead with E many different kinds of truth - half-truth, limited truth, truth out E of context.” (page v, Propaganda – Formation of Mens’ Attitudes, by Jacques Ellul (1973) F F 195. D2 referred to his editorial policy and principles when he G G testified. I do not have to rule on the correctness of his editorial policy and H principles, but only need to make the point that D2 emphasised the concept H of the “marketplace of ideas” introduced by Mr Justice Holmes in Abrams I I v United States (250 U.S. 616 (1919)) on 21 October 1919. However, there J are limitations to this concept. Soon after Mr Justice Holmes handed down J the judgment, Walter Lippmann, a famous journalist, wrote to him on 18 K K November 1919 stating that “the press, propaganda, and censorship L blocked the road to truth”. In Graham William Phillips v The Secretary of L State for Foreign, Commonwealth and Development Affairs [2024] EWHC M M 32 (Admin), Mr Justice Johnson pointed out:- N N “46. Further, the important policy considerations that O O underpin free speech show that it would be wrong to afford equal protection to all speech. That is because the essential P contribution that free speech makes to a democratic society P depends on a functioning democratic marketplace in free thought and ideas. That marketplace can be distorted by speech itself. In Q the online world of social media, bots, trolls, cyber troops, false Q and hacked accounts can be used to drown out the genuine free speech and replace it with a dishonest narrative to suit the whim R R of an autocrat, government or some other powerful body or person. Propaganda, disinformation and misinformation, S particularly in time of war, can be corrosive of democracy and S national security. Such tools are “capable of undermining the foundations of democratic societies and are an integral part of T the arsenal of modern warfare”: RT France at [56].” (emphasis T added) U U V V  - 103 - A A B B G4. No unfairness in the trial C C D 196. In addition to making the above constitutional and legal D arguments, the defence argued in its closing submission that the trial was E E unfair in the following ways: F F (1) The defence reiterated that the prosecution had G G breached its duty of disclosure by delaying the H disclosure of 587 articles and failing to keep the other H articles which were relevant and favourable to the I I defence. Although the application for a permanent J stay of proceedings was dismissed, when considering J the evidence in this case, ultimately the court still has K K to take into account the fact that Stand News published L a large number of non-seditious articles during the L material time, and that the 17 articles in the M M prosecution case accounted for only a small fraction N N of the over 20,000 articles published by Stand News O during the material time. O P P (2) During cross-examination of D2, the prosecution cited Q a large number of other news reports published by Q Stand News, far more than the 587 articles R R downloaded by PW2. Although the prosecution relied S on 17 articles as the basis of prosecution, they S repeatedly stated or implied that other publications by T T Stand News were also seditious, so as to infer that the U U V V  - 104 - A A B B defendants had seditious intentions, and in so doing C was in fact broadening the basis of prosecution. Citing C HKSAR v Chen Keen (2019) 22 HKCFAR 248, the D D defence argued that the prosecution was not entitled to E rely on anything beyond A1 to A17 to prove E conspiracy in this case. F F G (3) According to the defence, the prosecution had been G making substantial changes to its case in relation to the H H organisational nature of Stand News. Firstly, the I prosecution alleged in its opening submission that I Stand News was not an online media but a political J J platform. During cross-examination, the prosecution K modified its stance by stating that Stand News was not K only an online media but also a political platform, L L adding that it became a political platform only when it M published seditious articles. In the closing submission, M the prosecution changed its stance again, stating that N N Stand News was an “advocacy media”, that it O “provided a channel for the dissemination of political O propositions, advocacies or issues, etc.”, that it “had a P P fixed political stance, i.e. explicitly oriented towards Q the democracy camp”, that it “had long been Q publishing articles that painted a negative picture of R R the government or the establishment”, and that “had it S not been for the arrest of D2-D3, [each of the S defendants] would, together with other persons, T T continue to publish seditious articles on the Stand U U V V  - 105 - A A B B News website and the social media platforms of Stand C News”. The constant amendments left the defendants C at a loss, and reflected the fact that there was no factual D D basis for the charge. E E (4) The prosecution amended the facts of the case only F F when it was time for closing submissions, alleging that G Tsoi was the ultimate boss in control of the operation G of D1 and Stand News. As a result, D2 was deprived H H of the opportunity to respond or explain during cross- I examination. This was in breach of the Browne v Dunn I rule, and D2 was subjected to injustice as a result. J J 197. The defence pointed out that the 17 articles accounted for a K K very small number out of the over 20,000 articles published by Stand News L during the material time, representing less than 1% of the total, indicating L that Stand News was not a platform for the dissemination of seditious M M publications. N N O 198. The defence argued that the prosecution was not entitled to O prove conspiracy by including in cross-examination other Stand News P P reports beyond the 17 articles. However, I have ruled that MFI-4 and the Q related news reports are relevant to prove whether the defendants had the Q mens rea and may be used by the prosecution in cross-examination (see R R paragraph 114 above). The defence cited the judgment of HKSAR v Chen S Keen (2019) 22 HKCFAR 248 which related to overt acts of conspiracy, S but is not relevant to publication intention. T T U U V V  - 106 - A A B B 199. Regarding the organisational nature of Stand News, I am of C the view that the prosecution’s modification of its allegation that Stand C News became a political platform only when it published seditious articles D D had the effect of narrowing the time frame in which Stand News became a E political platform. As the defence case was that Stand News had never been E a political platform, thus the narrowing of the prosecution case did not, in F F my view, have an impact on the defence case and did not constitute G unfairness in the trial. The defence complained about the different G descriptions of political platforms, such as “it had long been publishing H H articles that painted a negative picture of the government or the I establishment” and “had it not been for the arrest of D2-D3, [each of the I defendants] would, together with other persons, continue to publish J J seditious articles on the Stand News website and the social media platforms K of Stand News”, etc. I am of the view that these are not of substantial K relevance and do not amount to unfairness in the trial. L L M 200. The prosecution all along alleged that D1 and D2 were M conspirators in this case. If D2 was the sole principal of D1, the charge of N N conspiracy could not be substantiated. It is for this reason that I am of the O view that it is clear that the prosecution was suggesting that D2 agreed with O another directing mind and will of D1 to commit the offence. It is also clear P P from the evidence that apart from D2, Tsoi was the only other director of Q D1 at the material time of the charge. The prosecution’s allegations and Q evidence are clear, and the fact that the name of Tsoi was not mentioned in R R cross-examination has not rendered the trial unfair. S S 201. On the whole, I am of the view that there has been no T T unfairness in the trial. U U V V  - 107 - A A B B C G5. Articles with seditious intentions C D D G5.1 Findings on the context of the relevant time period E E 202. In the light of the Court of Appeal’s judgment in Tam Tak Chi, F F I have to consider the actual circumstances, including the context of the G relevant time period, as to whether the 17 articles have seditious intentions. G H 203. In R v Aldred (1909) 22 Cox C.C. 1, Mr Justice Coleridge’s H I directions given to jurors on how to decide whether a defendant had I committed seditious libel included: J J “...but the test is this: was the language used calculated, or was K K it not, to promote public disorder or physical force or violence in a matter of State? .... In arriving at a decision of this test you are L entitled to look at all the circumstances surrounding the L publication with the view of seeing whether the language used is calculated to produce the results imputed; that is to say, you are M entitled to look at the audience addressed, because language M which would be innocuous, practically speaking, if used to an N assembly of professors or divines, might produce a different N result if used before an excited audience of young and uneducated men. You are entitled also to take into account the O state of public feeling. Of course there are times when a spark O will explode a powder magazine; the effect of language may be very different at one time from what it would be at another. You P P are entitled also to take into account the place and the mode of publication. All these matters are surrounding circumstances Q which a jury may take into account in solving the test which is Q for them, whether the language used is calculated to produce the disorders or crimes or violence imputed.” (p. 3 - 4) R R 204. I must therefore consider the circumstances in the context of S S the relevant time period when the alleged offence took place, and in T particular whether the public was susceptible to incitement during that T U U V V  - 108 - A A B period, “or whether the social setting had appeared in which, in the words B C of Mr Justice Coleridge, ‘a spark will explode a powder magazine’”. C D D 205. The prosecution asked the court to make findings, through E taking judicial notice, on some incidents that took place during the period E specified in the charge and around the time the Hong Kong National F F Security Law was promulgated. The defence stressed that matters of which G the court could take judicial notice must be obvious facts so that they did G not require any proof of evidence. I agree that these matters must be facts H H that are commonly known. As mentioned in paragraph 114 above, during I the course of D2’s evidence, I allowed the production of MFI-4 and news I coverage of the related events by the prosecution74. I have made it clear J J that these documents merely served to assist the prosecution in their cross- K examination of D2 by reminding D2 of the events, and that they were not K evidence in themselves; and that only the testimony of D2 in the courtroom L L in relation to those matters were to be taken as evidence. I am mindful of M the purpose of these documents. On the other hand, D2 also produced quite M a number of documents in support of his evidence during his examination- N N in-chief and re-examination by Ms Eu SC. They included news reports and O feature articles of Stand News and other media. I am of the view that the O factual descriptions in these news reports and feature articles must have P P been accepted by D2 as true and accurate, and therefore I can admit them Q as factual evidence. In their closing submission, the prosecution cited some Q court judgments in trials arising from some incidents75. The defence argued R R that the court should not take these cases into consideration because D2 S had not been given any opportunity to respond to them in court. I accept S 74 T Exhibit P35(1) to (4) T 75 Annex 11 to prosecution’s closing submission dated 29 May 2023 U U V V  - 109 - A A B B the defence submissions save for those facts referred to in these cases C which can also be established on another basis such as judicial notice. C D D 206. Whilst the time of the offence alleged in the charge is between E 7 July 2020 and 29 December 2021, the context of the relevant time period E was plainly interlinked with earlier events in Hong Kong. In considering F F the social context of the material time, an appropriate starting point would G as a matter of course be the Anti-Extradition Law Amendment Bill G Movement (“anti-ELAB Movement” or “Movement”) which took place in H H 2019. I I (HKU Public Opinion Poll Results in June 2019) J J K 207. According to a news report by Stand News on 6 June 201976, K the Scholars’ Alliance for Academic Freedom, a group of about 60 L L academics from different institutions, had commissioned the Public M Opinion Programme at the University of Hong Kong to conduct a public M opinion survey on the Extradition Law Amendment Bill. A written survey N N was conducted between 29 and 31 May and on 3 June 2019, during which O 1,002 Cantonese-speaking Hong Kong residents of age 18 or above were O interviewed. Results showed that 66% of the interviewees either disagreed P P with or strongly disagreed with the extradition of Hong Kong people to the Q Mainland for trial, whereas 17% either agreed or strongly agreed. Those Q who disagreed with the notion expressed that the amendment would lead R R to a loss of their confidence in “one country, two systems” should it be S passed. It can be observed that even at the very initial stage of the anti- S T T 76 Exhibit D2(31) U U V V  - 110 - A A B B ELAB movement, about 60% of the public was already holding sceptical, C dissatisfied or even distrustful attitudes toward the government. C D D (The CUHK Public Opinion Polling Report: situation between June and E December 2019) E F 208. The defence produced the “Report on Public Opinion during F G the Anti-Extradition Bill Movement in Hong Kong” (“CUHK Public G Opinion Polling Report”) . This research was conducted by the Centre for 77 H H Communication and Public Opinion Survey of the Chinese University of I Hong Kong (“CCPOS”). Its aim was to shed light on the anti-ELAB I movement in 2019 and public sentiment thereon. The research was J J comprised of two parts: (a) on-site protest survey: Among the 26 protests K (including 11 large-scale public processions, 8 static public meetings, and K 7 dynamic public meetings) that took place between 9 June and 8 L L December 2019, CCPOS interviewed 17,233 randomly selected protesters M at the scenes of protests (paragraph 4.1.1 of the report), and (b) telephone M surveys: CCPOS conducted five rounds of monthly territory-wide N N telephone surveys between 23 May and 14 October 2019, with a total of O 3,899 persons interviewed. Thereafter, CCPOS was commissioned by the O Independent Police Complaints Council (IPCC) to conduct another round P P of telephone surveys between 7 November and 13 December 2019, with a Q total of 2,008 persons interviewed. In other words, from May to December Q 2019, CCPOS interviewed a total of 5,907 members of the public through R R six rounds of telephone surveys (paragraph 4.2.1 of the Report). This report S was prepared by CCPOS between December 2019 and January 2020 (see S page 15 of the report’s preamble). It was produced by the defence with no T T 77 Exhibit D2(32) U U V V  - 111 - A A B B objection by the prosecution. The data and survey findings of this report C were also adopted by the IPCC in their report 78. I accept that the findings C of this report are a reflection of the public sentiment in the HKSAR from D D June to December 2019. E E 209. In relation to the research methodology of the on-site protest F F surveys, no matter which sampling method was used by the CCPOS, since G the great majority of the people who appeared at the scenes of protests were G likely protesters, they were probably dissatisfied with certain aspects of the H H regime or the government. The findings of this part of the survey squarely I reflects the circumstances of the protesters. On the other hand, the I telephone surveys were territory-wide surveys with random sampling, J J which should be able to reflect the circumstances and public opinions of K all Hong Kong people. It can be seen from the report that the issues studied K in the on-site protest surveys included who had protested, why they had L L protested, how they had protested and attitudes towards protests. In the M telephone surveys, the issues studied included views on the police, views M on the protesters and the Movement, views on the escalation of force, as N N well as news acquisition and political participation. The following points O from the report are worth noting. O P P 210. Firstly, the report provides the demographics of the protesters. Q From paragraph 5.1.1 of the report, it can be seen that the proportion of Q male respondents (40.5% to 64.2%) at the scenes of the protests was higher R R than that of female respondents (34.4% to 59.5%). As regards the age of S the protesters, the report states that young people were the most active in S the Movement. According to paragraph 5.1.1 and Table 4, the proportion T T 78 Exhibit P34 U U V V  - 112 - A A B B of respondents aged 34 or below ranged from 41.6% to 93.8%. Table 4 C shows that in 22 of the protests, the proportion was 60% or above. C D D 211. The report also provides a further age breakdown of the young E protesters. According to paragraph 5.1.1 and Table 5, those aged between E 20 and 24 accounted for 9.4% to 54.2% (but most were roughly 20% to F F 30%), while those aged between 25 and 29 accounted for 11.6% to 34.2% G (but most were roughly 10% to 20%). In other words, young people aged G between 20 and 29 were the most active participants. On the other hand, H H protesters aged 19 or below also accounted for 3.3% to 22.5%. Judging I from their age, I believe most of them were secondary school students. In I other words, since 9 June 2019, there were already secondary school J J students “taking to the streets”. In 15 out of the 26 on-site protest surveys, K the group aged 19 or below accounted for 10% or more of the protesters. K L L 212. Regarding the educational attainment of the protesters at the M scenes, paragraph 5.1.1 and Table 6 of the report show that the education M level of the participants of the Movement was generally high with the vast N N majority of the respondents (66.8% to 88.5%) having received tertiary O education or above. 10.5% to 31.0% of the respondents had received O secondary education and less than 4% had received primary education or P P below. Q Q 213. Regarding the socio-economic status of the protesters at the R R scenes, CCPOS asked the respondents to self-report their families’ socio- S economic status, and the answer options were “upper class”, “middle class” S and “lower class”. According to Table 7, “upper class” accounted for less T T U U V V  - 113 - A A B than 2% of the respondents, while “middle class” (41.9% to 64.9%) and B C “lower class” (28.1% to 48.6%) were the backbone of the Movement. C D D 214. Regarding the political orientation of the protesters at the E scenes, paragraph 5.1.2 of the report states that the survey provided a series E of options for the respondents to indicate their political orientation, which F were categorised into “pro-establishment”, “moderate democrat”, “radical F G democrat”, “localist”, “centrist / with no political affiliation” and “others”. G “Localist” was defined as “people who not only support democracy, but H also stress protecting Hong Kong’s local interests when facing Mainland H I China”. According to paragraph 5.1.2 and Table 8 of the report, “moderate I democrats” comprised the Movement’s core participants. They accounted J J for 30% to 40% of the total number of respondents throughout the K Movement. The report also states that “localists” comprised the second K most prominent protest constituency. Excluding the “exceptionally high” L L volume of localist involvement on 16 August reported at 52.5%, the M proportion of “localists” generally ranged from 20% to 40%. M N N 215. My observations after reading Table 8 are as follows. The O figures show that when these surveys first began, there were indeed more O “moderate democrats” than “localists”. On 9 June, “localists” only P P accounted for 27.0%, while “moderate democrats” accounted for 43.2%. Q However, in each of the 17 protests from 27 July to 8 December, “localists” Q accounted for more than 30% of the protesters, and it was even higher than R R 35% in 11 of these protests. Compared with “moderate democrats”, S “localists” accounted for a higher percentage than “moderate democrats” S in 9 of the protests. For example, in the last survey (8 December), T T “localists” accounted for 38.2%, while “moderate democrats” only U U V V  - 114 - A A B accounted for 33.7%. I am of the view that since 27 July, “localists” were B C no longer just the second most prominent protest constituency of the C Movement, but became as important as the “moderate democrats” in terms D D of the number of people. E E 216. Furthermore, according to paragraph 5.1.2 and Table 8, across F the 26 surveys, the proportion of those who identified as being “radical F G democrats” was on a gradual rise. Their proportion increased from 3.2% G on 9 June to 7.5% on 17 June, and remained at this level in the subsequent H H surveys conducted between July and early August. It increased to around I 10% in the mid-August survey and further rose to 15.5% on 8 December. I J J 217. Paragraph 5.1.2 of the report also points out that during the K same period the proportion of protesters who were “centrists / with no K political affiliation” dropped from around 20% during the early stages of L L the Movement to less than 10% in October, and to its lowest level of 4.9% M in December. According to CCPOS, there were two possible reasons for M the drop: either there was a decline in their participation level in the N N Movement, or a shift in their political orientation with the development of O the Movement. O P P 218. I notice that from Table 8, for the first five surveys, on 9 June Q 21.1% of the respondents self-identified as “centrists / with no political Q orientation” and then on 12 June, the next protest, the percentage of those R R who self-identified as “centrists / with no political affiliation” suddenly S went up to 38.9%; but in the following three protests (on 16, 17 and 21 S June), the percentage of those who self-identified as “centrists / with no T T political affiliation” returned to about 21%. The percentage kept dropping U U V V  - 115 - A A B B since then and never returned to the 21% level. It fell to 4% in the last C survey conducted on 8 December. Judging from this, the result of 38.9% C obtained on 12 June seems to be a bit unusual. I believe that those who self- D identified as “centrists / with no political affiliation” at that time might D E quite possibly be not answering truthfully, but were hiding their real E political orientation that they were, for instance, radical democrats or F F localists. In any case, according to the abovementioned figures, as the anti- G ELAB movement continued to develop, the political orientation of the G protesters seemed to be getting increasingly radical and anti-government, H H and the localist camp was also gaining strength. I I 219. Regarding the social movement experiences of the protesters J J on-site, according to paragraph 5.1.3 and Table 9 of the report, of the 24 K surveys conducted, except for the one on 16 June (44.3%), 50% or more of K the respondents in each survey indicated that they had taken part in the L L Occupy Movement / Umbrella Movement. This included over 60% in 15 M of the surveys (among which over 70% in 5 of the surveys). On 9 June, M 61.8% of the respondents indicated they had taken part in the Occupy N N Movement / Umbrella Movement. For the subsequent one on 12 June, the O percentage was as high as 76.6%. O P P (i) Characteristics of the 6.12 protesters Q Q 220. To assist in understanding the profiles of the protesters on 12 R R June 2019 (i.e. the day of charging at the police line at the LegCo), the data S show that (a) 53.8% of the protesters were male and the rest were female; S (b) 62.1% of the protesters were aged between 20 and 29 and 19% were T T aged between 30 and 34; (c) 86.3% of the protesters were tertiary educated U U V V  - 116 - A A B B or above; (d) 91.7% belonged to the middle to lower class; (e) 25.4% C identified themselves as localists and 29.5% identified themselves as C moderate democrats, but the figure of those who self-identified as centrists D D / with no political affiliation was unusually high (38.9%), and (f) 76.6% of E the protesters had taken part in the Occupy Movement / Umbrella E Movement. There is no official figure for the number of protesters on that F F day. However, the protesters surrounded the entire Legislative Council and G they were all over Tim Mei Avenue, Lung Wo Road, Lung Wui Road and G Tim Wa Avenue and it can be inferred that there were no fewer than 10,000 H H protesters. I I 221. These figures are clearly in line with the Stand News feature J J article, “How did the pre-publicised storming take place?” (published in K Stand News paper publication News Stand 79 ). Interviews conducted by K Stand News reporters at the scene on that day (12 June) show that the great L L majority of the protesters had participated in the Occupy Movement / M Umbrella Movement. It also reported on the political beliefs and attitudes M of this group of protesters about five years after the previous movements. N N The following are some examples. O O Ah-Sam (transliteration) P P • “At that time, Ah-sam was in the crowd preparing for the charging. As he was looking at the long shields, batons and rifles of the police Q in front of him, he was terrified. ‘During the Occupy Movement, I Q had guarded the frontlines but I had never tried attacking ... I thought R I was ready, but I wasn't.’ Still, in the end, he joined the other R protesters and dashed towards LegCo. S • “‘Go! No second chance!’ Reporters at the scene heard some S T T 79 Exhibit PC25(9) U U V V  - 117 - A A B protesters shouting. Ah-sam emphasised, ‘At that time, we all felt B that we had to go (charge forward). If we didn’t go, we wouldn’t C have a chance.’” C • “All day long, protester Ah-sam stared at the gates of the LegCo D demonstration area, which was heavily cordoned off by the police. D He felt indignant. ‘We are protesting against the amendment of the E Fugitive Offenders Ordinance. Why is the LegCo demonstration E area closed? It is like I am protesting against the government, what F fucking use is there for you to give us access to Ocean Park?’ In his F eyes, there is legitimacy in charging at the demonstration area.” G G Protester who took to the frontlines H • “When protesters initially occupied the roads, many media outlets H described it as a ‘Second Occupation’ after the 2014 Umbrella I Movement; however, many protesters who took to the frontlines said I that they did not intend to occupy for a long period of time after the J failure five years ago. Therefore, on that day the protesters in J Admiralty were in a state of constant alert and ready to escalate their K actions and fight at any time.” K L MM (29 years old) L • “MM (nickname), 29, who spent almost every day in the Admiralty M occupation zone five years ago, was not content with just occupying M Admiralty on 12 June. MM said, ‘I am not here for camping. I think N it is necessary to storm in.’” N O Terry O • “Another protester, Terry, said that since the mass rally on 9 June P was ineffective, he hoped that the demonstration on that day (12 P June) would ‘really achieve something’. He thought it was better not Q to protest peacefully, ‘Peaceful protests can no longer stop the Q government and I hope we can charge at the LegCo with more R impulsive actions.’” R S S Kiki (University student in her early 20s) • “Another person who shares this view is Kiki (a pseudonym), a T T university student in her early 20s. In her eyes, the goal of this U U V V  - 118 - A A B movement is to stop LegCo from passing the Fugitive Offenders B Ordinance Amendment Bill. The most effective and direct way to do C so obviously is to ‘Occupy’ – not only the neighbouring areas of Tim C Mei Avenue and Harcourt Road, but also the demonstration area of D LegCo, and then occupy the LegCo Building, thus making it D impossible for the Members of LegCo to hold meetings.” E E • “‘Charging into the ‘Area beneath the Pot’ (LegCo protest area) is F only the first step. My goal is not to go to the Area beneath the Pot F but to go to the first floor, the LegCo Chamber, and stay there ....’. G Kiki describes it as ‘Just like the “Sunflower’. The images of G students occupying the Legislative Council during the 2014 Sunflower Student Movement in Taiwan have always been deeply H H entrenched in the minds of young protesters of Hong Kong. ‘To besiege the Legislative Council is to get in there.’” I I J 222. From this article, it can be seen that right from the beginning J the protesters on that day did not intend to just occupy the roads around K K LegCo to prevent Members from entering LegCo to attend the meeting. L Similarly, they did not intend to just block roads to express their demands L peacefully. As shown in the article and photos, the protesters on that day M M had already prepared helmets, goggles, masks, gloves, umbrellas and other N materials. They were ready to charge and occupy LegCo at any time. In N other words, outside LegCo at that time was a large group of middle and O O lower class young people with high education levels. They had participated P in the Occupy Movement / Umbrella Movement about five years ago. By P way of judicial notice, I can be sure that the Occupy Movement / Umbrella Q Q Movement took place between September and December 2014; and that R the protesters’ demand was to fight for genuine universal suffrage as R defined by them; and that the occupation and blocking of roads for more S S than 70 days was ended by police dispersal action. The protesters did not T achieve anything. It was highly likely that this group of participants in the T Umbrella Movement were influenced by localism, Hong Kong nationalism U U V V  - 119 - A A B B and even the proposition of Hong Kong independence that had begun to C become popular and was discussed in the university sector and society at C that time. In January 2015, the then Chief Executive of the HKSAR, Mr D D Leung Chun-ying, pointed out in his Policy Address that Undergrad, the E official magazine of the Hong Kong University Students’ Union, had E featured a cover story titled “Hong Kong Nation: Self-Determination in F Destiny” in February 2014, and had published the book “Hong Kong F G Nationalism” in 2013 which advocated that Hong Kong should “find a path G to self-reliance and self-determination”. At that time, Chief Executive H H Leung warned that the public must stay alert to the erroneous propositions I of Undergrad and other students, including the Occupy Movement student I leaders. Brian Leung Kai-ping was the editor-in-chief of Undergrad at that J J time. An interview of Brian Leung Kai-ping was also published in the K Stand News paper publication, News Stand. I believe that when the articles K about localism and Hong Kong nationalism were published, the people L L who had participated in the Occupy Movement / Umbrella Movement were M studying in universities or would soon be; and they were the first ones to M come across these discussions and proposition. It seems that five years after N N the Umbrella Movement, these people had became more entrenched in the O concept of localism. Their means of pursuing their political demands were O also deeply influenced by the Sunflower Movement in Taiwan, and they P P tended to adopt increasingly radical and non-peaceful means. Of course, Q between 2014 and 2019, Hong Kong also witnessed incidents related to the Q development of localism, for example, the Mongkok riot in 2016, and R R Edward Leung Tin-kei of Hong Kong Indigenous running for the 2016 S S T T U U V V  - 120 - A A B B Legislative Council by-election in the New Territories East under the C slogan “liberate Hong Kong, revolution of our times”80. C D D 223. In the demonstration and clash on 12 June 2019, the E participants had in advance prepared for storming the Legislative Council, E even those, it is believed, who had not participated in the Occupy / F F Umbrella Movement. According to the above articles in Stand News, G before that day, some people had already rallied participants for the G demonstration through the messaging app Telegram, and had divided the H H protesters into different groups, including the sentinel group, the I propaganda group, the supplies group, the strategic group, the secondary I school students group, the Christian group, and so on. On 12 June, the J J protesters’ discussion was just mainly about the timing of commencing the K escalated operation, with 3 o’clock or 6 o’clock being discussed the most. K The author described that, “on that day, the protesters in Admiralty, at the L L Central Government Offices, were on alert, ready to escalate and engage M in combat at any given moment”. This shows that even at the very early M stage of the demonstration, at least quite a number of protesters were no N N longer only resorting to peaceful means in pursuit of their demands. O O (ii) Localist political demands P P Q 224. Furthermore, the demands of the protesters no longer only Q focused on the Fugitive Offenders Ordinance, even before 12 June 2019. R R As shown in the photograph published on the first page of the News Stand, S during the procession on 9 June 2019, behind the big banner with “Reclaim S T T 80 Exhibit PC35(19) U U V V  - 121 - A A B Hong Kong” against a yellow background, the protesters held up seven B C flags with the words “Hong Kong Independence (in Chinese) HONG C KONG INDEPENDENCE” written against a blue background. D D E 225. From an article of Ming Pao dated 9 August 2019 produced E by the defence which read “Lee Lap-fung: Legislative amendments, police F power, revolution of our times – Looking at the focus of the movement F G from an on-site survey at the procession”81, it can also be seen that in a G short period time of around two months after the procession on 9 June H H 2019, the then Chief Executive Mrs Carrie Lam Cheng Yuet-ngor had I already brought up in a press conference that even though the disputes over I the amendments to the Fugitive Offenders Ordinance had come to an end, J J the demands of the protesters were no longer confined to the legislative K amendments alone. She reprimanded the extreme protesters for proposing K “liberate Hong Kong, revolution of our times” and defacing the national L L emblem and national flag, which were acts challenging national M sovereignty, undermining the prosperity and stability of Hong Kong, and M even leading to the destruction of Hong Kong. The Director of the Hong N N Kong and Macao Affairs Office, ZHANG Xiaoming, also said that the O incident had the characteristics of a colour revolution. It can be seen from O this that even at the very beginning of the movement, the idea and even P P acts of striving for Hong Kong independence had, at the very least, started Q brewing in the public space. Q R R 226. According to paragraph 5.2.3 and Table 14 in CUHK’s public S opinion survey, among the six demonstrations held on 4 August (Tseung S Kwan O), 4 (Western District), 10, 11, 13 and 16 August in 2019, in terms T T 81 Exhibit D2(33) U U V V  - 122 - A A B of political slogans, those who had chanted the slogan “liberate Hong B C Kong, revolution of our times” (65.3% to 81.5%) were 20% to 30% more C than those who had chanted “I want genuine universal suffrage” (45.8% to D D 53.7%). This shows that the demands at that time had already shifted away E from following the provisions for universal suffrage as set out in the Basic E Law, and had become more radical political demands which had originated F F from the Hong Kong Indigenous. As for the situation after 16 August 2019, G while the CUHK’s public opinion survey did not provide any data, I can G take judicial notice and find that, on 1 July 2020, when Tong Ying-kit H H committed the offence of incitement to secession by driving a motor cycle, I a flag with the words “liberate Hong Kong, revolution of our times” was I hoisted on the vehicle. J J K (iii) Acceptance of radical protesters by citizens and unity between K peaceful and militant protesters L L M 227. The CUHK’s public opinion survey suggested that the M intensity of the demonstration was unprecedented. The Court of Final N N Appeal set out the relevant facts in Part C1 of Kwok Wing Hang & Others O v Chief Executive in Council & Another [2020] HKCFA 42, and in O paragraph 3 of HKSAR v Lai Chee Ying [2021] HKCFA 3 that, on 11 P P November 2019, a citizen was doused with inflammable agent and set on Q fire during a dispute in which he had rebuked a protester for vandalising a Q railway station, and he suffered extensive burns to his body; on 13 R R November, a 70-year-old cleaner was killed by a stone thrown by a S protester. All these facts are within my judicial notice. In short, starting S from 12 June 2019, and not until at least the end of the PolyU incident in T T December 2019, violent incidents occurred in one or multiple places in U U V V  - 123 - A A B B Hong Kong every week. There was absolutely no chance that the SAR C Government and the Central Government would consent to the protesters C resorting to these violent acts in order to call for a change in the political D D system. These confrontations would only go on without an end in sight. E E 228. On page 95 of the CUHK’s public opinion survey, it was F F mentioned that even though the demonstrations were unprecedented in G terms of intensity, this movement was different from the previous ones G because of the rare and prolonged co-existence of peaceful demonstrations H H and militant confrontation. The findings of the survey show that the I protesters very much accepted radical acts throughout the Movement. I Looking at the on-site surveys of multiple demonstrations, most of the J J respondents believed that: (1) radical demonstrations could exert pressure K on the government to listen to public opinion (around 50% to 60% in most K surveys); (2) the greatest effect could only be achieved through the L L coordinated efforts of radical demonstrations and peaceful assemblies M (around 80% to 90%); (3) when the government refused to listen to public M opinion, radical demonstrations were acceptable and understandable (over N N 90% in most cases). O O 229. The protesters also remained united. According to page 98 of P P the report, despite the escalation of force by some radical protesters, the Q protesters generally remained united in the Movement, and the violent Q behaviour did not cause moderate protesters to “sever ties” with them. In R R the surveys conducted on-site at the demonstrations from July to S December, the surveyors found that there was a rather high level of S solidarity among the protesters. The vast majority of respondents (over T T 90%) believed that the radical protesters were speaking out for them; that U U V V  - 124 - A A B B they were in the same boat with the radical protesters; and they felt that C they were also members of the radical protesters. These results show that C the two slogans of the movement, “brothers climb mountains, but by their D own efforts” and “no snitching, no severing of ties”, were effective in D E uniting the non-violent and militant protesters. E F F 230. It is also stated on page 99 of the report that apart from the G protesters, there was also considerable solidarity among the general public. G The territory-wide telephone survey with Hong Kong citizens revealed that H H although the respondents did not approve of many of the radical acts in the I demonstrations, they were sympathetic towards the protesters. For I example, most respondents agreed that radical demonstrations were J J understandable when the government did not heed public opinion. K Moreover, most of the respondents blamed the Hong Kong Government K for the violent clashes, while only a small portion of the respondents (about L L 10%) blamed the protesters. M M (2019 District Council Election) N N O 231. From the above survey findings, it can be said that the radical O behaviour of the protesters was unrestrained because their behaviour had P P gained the understanding and even support of some political parties and a Q large number of citizens who claimed to embrace the ideology of being Q “peaceful, rational and non-violent” during protests. They provided R R support in spirit and in resources, believing that the militant protesters were S speaking out for them and fighting for their demands. This situation was S fully reflected in the results of the November 2019 District Council T T Election. By taking judicial notice, I find that the said District Council U U V V  - 125 - A A B B election was publicised as a referendum on political views by different C parties which respectively mobilised a large amount of manpower and C resources to urge voters to vote to signify their political stance, instead of D D focusing on District Council affairs. In the end, approximately 2.9 million E voters cast their votes. The non-establishment camp achieved a landslide E victory by getting 389 seats of the 452 elected seats (86% of the total), F F despite garnering only about 57% of the votes, whilst the pro-establishment G camp secured about 41% of the votes but only gained 59 seats. The non- G establishment camp gained control of 17 out of the 18 District Councils. H H D2 mentioned more than once in his evidence that he was surprised by the I election results because he had not expected that the radical behaviour of I the protesters would not cost them the support of the majority of the public. J J The election took place on 24 November 2019. As mentioned previously, K less than two weeks before the polling, there were incidents of protesters K setting a person on fire, someone being killed with a projectile, as well as L L the riots at the CUHK and PolyU causing congestion on major roads; yet M the protesters’ camp still won a resounding victory. In the past, Hong Kong M people with different political views did not accept violence, and would N N even condemn persons who resorted to violence to fight for their political O demands. However, by this stage, the situation had changed; one’s stance O came first, and the goal was paramount regardless of the means. I am P P certain that Hong Kong had already entered a period of populism by that Q time. Q R R (Political demands shifting to political reform) S S 232. The CUHK’s report further points out that the Movement had T T brought public grievances and distrust towards the police and the U U V V  - 126 - A A B B government to a level of crisis. As the Movement developed, opinions C among the protesters and the public had evolved over time from focusing C on individual incidents to placing more and more focus on certain D D fundamental and structural issues. For instance, there was significant E support for restructuring the Police Force and fighting for democratic E political reform. According to the report, about 80% to 90% of the F interviewed protesters considered that the strive for Hong Kong’s F G democracy/dual universal suffrage as a “very important” cause for the G protests. The report further points out that quite surprisingly, while the H H protesters thought that the government should be held responsible for the I most serious political crisis since the handover, they did not see the I stepping down of Chief Executive Carrie Lam and other major officials as J J a very important goal of the Movement (roughly only 40% to 50% of the K respondents viewed this cause as “very important”). The division in K objectives suggested that the protesters aimed at seeking a fundamental L L overhaul of the political system, rather than short-term quick fixes. While M the protesters did not target individual officials, I am of the view that they M targeted the constitutional order and the status of the the Central N N Government and the HKSAR. O O (Number of participants in the protests between June 2019 and May 2020) P P Q 233. The CUHK’s report looks into the situation up to January Q 2020. According to the journal article submitted by the defence and written R R by Professor Clifford Stott et al, i.e. Patterns of ‘Disorder’ During the 2019 S Protests in Hong Kong: Policing, Social Identity, Intergroup Dynamics, S and Radicalization. Policing: A Journal of Policy and Practice, Volume 14, T T U U V V  - 127 - A A B Issue 4, pages 814 - 835, published on 17 November 2020 82 , over one B C thousand individual protests took place in Hong Kong between June 2019 C and May 2020, involving more than 14 million protesters. I believe that D D even if the said figure was referring to the headcount of the attendance E instead of the number of people, and even if these people did not use any E violence during the protests, it is evident that they must have had various F F grievances against the Police Force, the SAR Government, and/or the G Central Government. After the promulgation and implementation of the G National Security Law in Hong Kong the grievances among some or all of H H them would not automatically disappear. They were all potential targets of I sedition. I J J (The paralysis of the Legislative Council) K K 234. The LegCo was paralysed as the House Committee was still L L unable to elect its Chairperson for half a year, and thus the institution of M the private prosecution by a citizen, which was dismissed: Wong Man Hon M v Dennis Kwok [2020] HKMagC 4. On 30 June 2020 at the Democratic N N Kowloon-East Primary Election Forum, when being questioned by Ho O Kwai-lam on whether the Civic Party was an opportunistic party, Alvin O Yeung Ngok-kiu admitted that Dennis Kwok and other Civic Party P P members were filibustering in the Council and claimed that they were Q therefore subjected to “state-level attack”83. The government’s bill to stop Q the riots was strongly opposed by some of the lawmakers. R R S (The collapse of the traditional corrective forces in social relations) S 82 T Exhibit D2 (236) T 83 Exhibit P35(12) entry 583 U U V V  - 128 - A A B B C 235. I take judicial notice of the fact that during this period of C intensely heated political atmosphere, extremely serious rifts developed D D within society. Political differences deeply divided families. As a result, E parents and children lived separately or were not on communicating terms. E Examples can be seen in two articles published in News Stand by Stand F F News featuring Leung Kai-ping and Lo Kin-man. Classmates and friends G with different political views would not meet or talk to each other. The G CUHK’s report shows that some teachers had participated in the protests. H H Students in school might not necessarily be able to have the guidance from I their teachers or schools. There emerged the yellow and blue economic I circles. J J K (35+ Primary Election of the pro-democracy camp) K L L 236. Another election was the primary election held by the pro- M democracy camp on 11 and 12 July 2020. At that time, the pro-democracy M camp intended to determine the candidates running for the LegCo through N N the primary election, so as to reduce vote splitting and increase the chances O of winning, with a view to obtaining more than 35 seats in the LegCo, and O then, forcing the government to respond to their five demands, including P P the implementation of dual universal suffrage by vetoing government Q budgets with a majority. This election was held after the Hong Kong Q National Security Law had come into effect. Although government R R officials had already pointed out that such election might be illegal, there S were about 610,000 voters. This shows that a large number of people were S still dissatisfied with, or even opposed, the SAR Government and the T T Central Government. U U V V  - 129 - A A B B C (The age of rumours/unwillingness to find the truth) C D D 237. During this period when the political climate was extremely E heated, there were often unfounded accusations circulating in society. For E example, there were allegations that someone had been killed by the police F F at Prince Edward Station on 31 August and that someone had been sexually G assaulted in San Uk Leng, and the police were even linked to the deaths of G two young people. After the accusations were made and spread, no one was H H willing to assist the police in their investigations, and the rumours were I promoted as facts. I J J 238. A female known as “the young girl with a ruptured eye” was K regarded as the protesters’ totem. It was alleged that she was blinded in one K eye after being hit by a police beanbag round which had shattered her L L goggles, but she never confirmed whether she had actually lost her sight. M She even instituted all possible proceedings to stop the police from M obtaining her medical report: K v Commissioner of Police [2020] 1 N N HKLRD 606 (the Court of First Instance hearing); [2021] 2 HKLRD 645 O (the Court of Appeal hearing). O P P 239. The Independent Police Complaints Council (IPCC) was Q originally scheduled to release its thematic study report in early 2020. Q However, a member of the public brought a judicial review on the ground R R that the IPCC did not have the power to initiate the study, resulting in the S report not being released as scheduled. The relevant court decisions can be S seen in: Lui Chi Hang Handrick v Independent Police Complaints Council T T [2020] 1 HKLRD 533 (leave to apply for judicial review was granted to U U V V  - 130 - A A B B the applicant, 20/12/2019); and Lui Chi Hang Handrick v Independent C Police Complaints Council (No. 2) [2020] 2 HKLRD 911 (the application C for judicial review was dismissed by the Court of First Instance). The IPCC D D subsequently published its report on 15 May 2020. E E (Broadcasting and media platforms available to the government) F F G 240. D2 testified that the government had ample broadcasting G materials for the purpose of launching its information campaign. However, H H there is no doubt that in a free economy like Hong Kong, the government I simply has no control over any media in terms of promoting information I on its behalf. J J K 241. The only media organisation directly under the government K was Radio Television Hong Kong (RTHK), but even then the government L L had no control over the operation of RTHK. Some legislators and members M of the public considered that while remunerated by the government, some M people in RTHK were performing anti-government work, and for this N N reason a member of the public brought a private prosecution against the O then head of RTHK, and the intended charge was “misconduct in public O office”. The magistrate refused to issue a summons for the private P P prosecution: see Kwok Tak Ying v Leung Ka Wing [2020] HKMagC 2. The Q applicant then appealed, and the Court of First Instance subsequently Q referred the case to the Court of Appeal, which eventually dismissed the R R appeal: see Kwok Tak Ying v HKSAR & Secretary for Justice (Interested S Party) [2021] 4 HKLRD 841. S T T U U V V  - 131 - A A B B 242. Moreover, the then staff produced programmes which were C sarcastic against the police and the government. The Communications C Authority issued a warning to RTHK, which led to the Radio Television D D Hong Kong Programme Staff Union and the Hong Kong Journalists E Association to take legal action against the Communications Authority, E and the actions are still pending: Radio Television Hong Kong Programme F F Staff Union and the Hong Kong Journalists Association v Communications G Authority [2021] 5 HKLRD 509, and CACV579/2021 & CACV584/2021 G (the appeals are still pending). H H I 243. On the other hand, there were a large number of opinion I leaders and/or bloggers in society publishing extensive criticisms of the J J SAR Government and the Central Government, and there were people K swindling money by smearing the government. D2 did not state in his K testimony which media could be controlled by the government. In any case, L L even if government radio stations and departmental websites operated 24 M hours a day, the government simply would not be able to control or guide M people with opposing views so as to make them receive its information and N N explanations. O O 244. In any event, whether or not the government can get its P P message across to the general public is not something that can be resolved Q merely by the amount of resources the government can put in. More Q importantly, it hinges on the willingness of the readers and listeners to R R receive the broadcast message. S S (Digital media usage) T T U U V V  - 132 - A A B B 245. It was pointed out in paragraph 5.3.3 of the Research Report C on Public Opinion of CUHK that online news media were the most C important source of movement-related information for the respondents. In D D the first four surveys (26 June to 21 July), 83.4% to 89.0% of the E respondents indicated that they quite often / very often received movement- E related information from online news media such as Stand News and In- F F Media. The percentages surpassed 90% in late July and had remained at G this high level since then. According to Table 17, from July 2019 to 8 G December of the same year, 95% or more of the protesters surveyed had H H received information through online media. Thus, it can be seen that the I information of Stand News reached nearly all protesters. Even though I CUHK’s survey was discontinued after December 2019, there is no reason J J to believe that the behavior of the protesters had changed. According to K CUHK’s survey, most of the protesters were aged 34 or below. I may take K judicial notice and find that young people nowadays receive information L L through their mobile phones far more frequently than through other means M of information dissemination. M N N (The influential power of Stand News) O O 246. D2 testified that the Chinese University of Hong Kong P P conducted a survey on media credibility on 14-16, 19-23 and 26 August Q 2019. The survey classified news media organisations in Hong Kong into Q four groups: electronic media, paid newspapers, free newspapers and R R online news media. Stand News fell into the online news media group, S which consisted of a total of 10 online media. Among the 10 online media, S Stand News scored 6.69 points, ranking first in credibility and was ahead T T of In-Media, which ranked second, by 1.06 (6.69 - 5.63) points. The only U U V V  - 133 - A A B B reasonable and irresistible inference is that Stand News must have also C been the most frequently accessed among the online media. Furthermore, C when compared with all news media in Hong Kong, Stand News’ score in D D credibility ranked third, which was just slightly lower than Radio E Television Hong Kong’s score of 6.72 and Now TV / Viu TV’s score of E 6.76. The latter two were a radio station and a television station in the F F electronic media group. Thus, it can be seen that the information G disseminated by Stand News must have been highly influential because G most young people receive information through online media, and as Stand H H News was regarded as the most credible among the online media, young I people would naturally receive the information coming from Stand News. I J J 247. This is consistent with the number of social media followers K of Stand News. D2 stated in his testimony that he was not sure but he had K the impression that Stand News had approximately 200,000 odd to 300,000 L L Facebook followers as at June 2019, and that the number of followers on M Facebook had continued to rise, with the only fall registered during the M period between October and November 2020 when the US presidential N N election was underway, the reason being that some of the bloggers of Stand O News had criticised Donald Trump in their articles at the time, causing O some followers to feel dissatisfied and leave. D2 could not recall the exact P P number of people who had left but he recalled that there were Q approximately “several ten thousand” people. Nevertheless, D2 was sure Q that the number of followers exceeded one million at the time, although he R R was unable to say by how much. D2 also pointed out that although the S number of followers grew much more slowly in 2021 than it did in 2020, S there were 1.3 million likes and 1.6 million followers on Facebook when T T Stand News closed down. Notwithstanding that D2 had said under re- U U V V  - 134 - A A B examination that followers might comprise “cyber-armies” targeting Stand B C News, there is no doubt that the number of followers of Stand News was C at least close to 1.6 million. The most important part of the job of the media D D is to succeed in winning over readers or listeners who are willing to access E their channels. Undoubtedly, from 2019 till its closure, Stand News had E managed to do that and had an extremely large influence. F F G (The dispute on whether society had returned to normal) G H H 248. The defence asserted that the offence occurred during the I period between 7 July 2020 and December 2021, and during this I approximate one-and-a-half-year period, according to the official view, J J after the Hong Kong National Security Law had come into effect, social K order in the HKSAR had returned to normal and the threat of terrorist K attacks had remained at the same moderate level as before. The defence L L produced the editorial of Ta Kung Pao dated 8 October 2020 84, the press M release of the speech of the then Secretary for Security John Lee dated 18 M November 202085, Ta Kung Pao’s report dated 5 December 2020 on the N N speech of the Director of the Liaison Office of the Central People’s O Government Luo Huining86, Now News Channel’s report dated 27 January O 2021 on the speech of President Xi Jinping given during Chief Executive P P Carrie Lam’s reporting of work to him via video conferencing87, the press Q release of the speech of the then Secretary for Security Chris Tang dated Q R R 84 S Exhibit D2 (230) S 85 Exhibit D2 (231) 86 T Exhibit D2 (232) T 87 Exhibit D2 (233) U U V V  - 135 - A A B 14 July 2021 88 and the Legislative Council Secretariat’s Public B C Preparedness for Terrorist Attacks released on 3 May 201889 as evidence C in support of this point. D2 also testified that according to his observation, D D during this period of time, there was almost no street demonstration and E the government had strong resources, skills and will, so there was no E chance for terrorism to germinate in the community as alleged by the F F prosecution, and he did not observe this happening in the second half of G 2020. G H H 249. I have carefully read the above-mentioned journalistic I materials (namely the news reports and editorials) and official press I releases produced by the defence. In my view, although both the Central J J Authorities and the SAR Government had pointed out that by and large, K social order in the HKSAR had been restored and society had returned to K peace after the Hong Kong National Security Law had come into effect, L L they also pointed out that the restoration of order was only the first step, M and that there was still much to be done in order to safeguard national M security as well as the stability and prosperity of Hong Kong. They have N N never said that political or other unstable factors in society have been O completely eliminated. For example, in the speech given on 4 December O 2020, the National Constitution Day, Director Luo Huining mentioned that P P the Constitution and the Basic Law jointly form the constitutional basis of Q the HKSAR, and the Hong Kong community must fully recognise and Q respect the Constitution; however, it can be seen from a series of significant R R political and legal disputes that some people in Hong Kong only respect S the original legal system remaining unchanged, but disregard the S 88 T Exhibit D2(234)(A) and (B) T 89 Exhibit D2(234)(C) U U V V  - 136 - A A B B fundamental change in the constitutional basis of the HKSAR, which is the C ideological source of some of the chaos in Hong Kong in recent years. C Director Luo emphasised that the establishment of constitutional authority D D rests on the model of constitutional awareness and concepts of the whole E community. The SAR Government and public officers should take the lead E in launching in-depth promotion of and education on the Constitution, F F vigorously promote the spirit of the Constitution, conscientiously G strengthen public awareness of the Constitution, and promote the full G 90 implementation of the Constitution in the HKSAR . H H I 250. Moreover, on 14 July 2021, in his reply to a question by the I Hon Elizabeth Quat, a member of the Legislative Council, the then J J Secretary for Security Chris Tang also said 91: K K “The implementation of the Hong Kong National Security Law since last year has L yielded immediate and noticeable results. Social stability has been restored and the L public protected. Yet, a handful of extremists have not given up and continue to M M spread seditious remarks on the Internet to incite hatred and advocate the use of violence for expressing their political stance or ideological assertions. Some of N N them have even planned actual acts of violence. For people who have attempted to O rationalise or downplay violent attacks, their damage and harm inflicted upon O society are equally serious.” P P 251. From the press release, it can be seen that the Hon Quat [raised Q Q the question] because an incident in which a man had stabbed and wounded R a police officer on duty with a sharp knife and then killed himself had R occurred on 1 July 2021 (namely the first anniversary of the S S T T 90 Exhibit D2 (232) 91 Exhibit D2 (234A) U U V V  - 137 - A A B B implementation of the Hong Kong National Security Law). As the incident C was shocking at the time, I may take judicial notice and find that this C incident did occur. It seems the defence does not dispute this as before D2 D D produced the above-mentioned journalistic materials and official press E releases, Ms Eu SC took D2 through part of the contents of MFI-4 prepared E by the prosecution, including the said “1 July police stabbing incident”, F F and D2 did not dispute the occurrence of the incident. Similarly, D2 did G not dispute that after the Hong Kong National Security Law had come into G effect, someone had used petrol bombs to burn down a vehicle parked in H H the car park of a police clubhouse on 1 December 2020 (item 162 of MFI- I 4), the police had found upon search explosives and had arrested two men I for conspiracy to manufacture bombs on 8 February 2021 (item 193 of J J MFI-4), and the police had arrested nine members of a group called K “Returning Valiant”, including six students, for attempting to manufacture K explosives on 6 July 2021 (item 236 of MFI-4). Thus, it can be seen that L L even one year after the implementation of the Hong Kong National M Security Law, although large-scale demonstrations could no longer be seen M in the territory, there were still quite a few people who opposed the N N implementation of the Hong Kong National Security Law in the HKSAR O hidden in the community, and some of them even chose to use violence, O including making use of explosives, to fight for their political demands or P P to express their dissatisfaction. There were also quite a few people in the Q community praising or glorifying people who used violence unlawfully. Q The incidents revisited by D2 during re-examination included the arrest of R R someone for inciting others to attack police officers on 2 and 4 July 2021 S (items 234 and 235 of MFI-4). I may also take judicial notice and find that S on 7 July 2021, the Hong Kong University Students’ Union Council called T T a meeting and passed a resolution expressing its appreciation for the U U V V  - 138 - A A B perpetrator of the “1 July police stabbing incident”, and that the process of B C holding the meeting and passing the resolution was broadcast live to the C public on social media (item 237 of MFI-4). These incidents show that in D D the HKSAR community where public order had seemingly been restored, E there were still many people who were dissatisfied with the constitutional E order and political environment of the HKSAR for reasons of their own. F F G 252. The defence submitted that the risk of terrorist attacks in Hong G Kong had remained unchanged, namely remained moderate all along, over H H the period of the alleged offence. However, it can be seen from Secretary I Tang’s speech that the threat of terrorist attacks had remained moderate I because according to the government’s assessment on the basis of threat J J levels classification, even though there was the possibility of an attack K faced by Hong Kong, there was no specific intelligence indicating that it K would become a target of attack92. In other words, the official assessment L L at the time was that there was no intelligence indicating that the HKSAR M was about to be attacked, but the risk of an attack was always there. In M particular, I believe it would be difficult for the police to get hold of N N intelligence before a lone wolf attack similar to the “1 July police stabbing O incident” occurred. O P P 253. In considering the journalistic materials and official press Q releases produced by the defence, it is not necessary for me to decide Q whether the incidents referred to by each of the speakers concerned had R R occurred or not, or whether their assessments were accurate or not. My S emphasis is on the correct interpretation of the evidence. For the reasons S already given, I do not accept that such evidence shows or suggests that T T 92 Exhibit D2(234)(A) and (B) U U V V  - 139 - A A B B HKSAR society had returned to peace or that it was impossible for C terrorism to germinate or occur in Hong Kong. C D (Hong Kong people’s trust in the Central Government) D E E 254. The defence also produced the findings of the surveys on F Hong Kong people’s trust in the Central Government 93 conducted by the F G Public Opinion Programme at the University of Hong Kong. Such surveys G have been conducted half-yearly since 1992, and what the defence H H produced was the findings of the surveys conducted between December I 1992 and February 2023. The defence took the view that the surveys I showed that Hong Kong people’s trust in the Central Government J J increased significantly over the period of the alleged offence, and had K almost returned to the high level registered in 2007-2008 by the end of K 2021, reflecting the fact that the “anti-China and anti-communist” L L sentiments as alleged by the prosecution were not prevalent in the M community. D2 confirmed that the Olympic Games were held in Beijing M in 2008. N N O 255. The prosecution did not challenge the findings of the surveys O produced by the defence. Accordingly, I accept that the data yielded by P P such surveys are true and accurate. However, in considering whether Hong Q Kong people trusted the Central Government or not, in my view, one has Q to consider all the survey data. The design of such surveys is quite simple. R R The evidence showed 94 that the pollsters only asked respondents one S question: “On the whole, do you trust the Beijing Central Government?” S T T 93 Exhibit D2(265)(A), (B) and (C) 94 Exhibit D2(265)(B) U U V V  - 140 - A A B The respondents’ responses were only divided into six categories: “trust B C very much”, “quite trust”, “half-half”, “quite distrust”, “distrust very C much” and “don’t know / hard to say”. The pollsters would express the D D response in each category as a certain per cent of the total number of E responses, then add up the percentage of the response of “trust very much” E and that of “quite trust” to form the percentage of “trust”, as well as add up F the percentage of the response of “quite distrust” and that of “distrust very F G much” to form the percentage of “distrust”, and then subtract the G percentage of “distrust” from the percentage of “trust”, so as to arrive at H the “net value” of trust. In other words, when the “net value” is a positive H I number, the number of Hong Kong people who trust the Central I Government is greater than that of the number who distrust the Central J J Government, while the opposite is true when the “net value” of trust is a K negative number. K L L 256. The defence submitted that during the period of the alleged M offence (namely 7 July 2020 to 29 December 2021), Hong Kong people’s M trust in the Central Government had returned to the high level registered in N N 2007-2008, with the results of the two surveys conducted in June and O December 2008 being, respectively, 54.9% and 53.1% for “trust”, 13.4% O and 14.5% for “distrust”, and positive 41.4% and 38.6% for the “net value”. P P However, the defence assertion that people’s trust in the Central Q Government had almost returned to the high level registered in 2007-2008 Q by the end of 2021 is not supported by the data. Regarding Hong Kong R R people’s trust in the Central Government, I now set out the data obtained S from the surveys in 2003, 2008 and March 2013 to February 2023 in the S table below: T T U U V V  - 141 - A A B Survey Start Date Survey End Date Trust Distrust Net Value B 2023-02-01 2023-02-09 53.5% 27.6% 25.9% C C 2022-07-04 2022-07-07 50.7% 29.9% 20.8% D D 2022-02-21 2022-02-24 51.9% 30.8% 21.1% 2021-08-20 2021-08-26 37.7% 41.7% -3.9% E E 2021-02-24 2021-02-26 40.6% 42.6% -2.0% F F 2020-08-17 2020-08-20 28.2% 57.6% -29.4% G 2020-02-17 2020-02-19 19.7% 62.7% -43.0% G 2019-08-15 2019-08-20 22.8% 62.7% -39.9% H H 2019-02-28 2019-03-05 32.8% 47.7% -15.0% I 2018-09-03 2018-09-06 40.1% 40.5% -0.4% I 2018-01-03 2018-05-25 35.8% 46.2% -10.4% J J 2017-09-01 2017-09-06 35.7% 44.6% -8.9% K 2017-03-21 2017-06-15 38.6% 38.7% -0.0% K 2016-08-19 2016-12-15 34.4% 42.0% -7.6% L L 2016-03-14 2016-06-16 29.9% 43.3% -13.4% M 2015-09-09 2015-12-15 35.2% 39.9% -4.7% M 2015-03-09 2015-06-18 34.4% 42.1% -7.7% N N 2014-09-04 2014-12-18 31.5% 46.6% -15.1% O 2014-03-17 2014-06-12 35.1% 38.9% -3.8% O 2013-09-15 2013-12-12 36.1% 36.8% -0.7% P P 2013-03-19 2013-06-13 30.9% 38.9% -7.9% Q 2008-08-25 2008-12-29 53.1% 14.5% 38.6% Q 2008-02-28 2008-06-20 54.9% 13.4% 41.4% R R 2003-08-18 2003-12-23 45.6% 20.6% 25.0% S 2003-02-14 2003-06-18 37.6% 29.4% 8.2% S T T U U V V  - 142 - A A B 257. On basis of judicial notice and D2’s testimony, two major B C events occurred in the HKSAR in 2003: the outbreak of SARS, and the C attempt of the SAR Government to enact laws in accordance with Article D D 23 of the Basic Law in July of that year, which, however, met with strong E opposition from some political parties and quite a number of members of E the public, and the bill was eventually withdrawn. Nevertheless, at that F F time, people who trusted the Central Government still outnumbered those G who did not, with a positive net value of trust rising from 8.2% in June G 2003 to 25% in December 2003; this was believed to be related to the H Central Government’s approval of the Individual Visit Scheme for some H I mainland residents to travel to Hong Kong to boost the economy of the I HKSAR. In the following years, some significant events also occurred in J J the HKSAR, for example the election-related “4.26” interpretation of the K Basic Law by the National People’s Congress in 2004, but the net value of K trust remained positive in that year and the few years that followed and L L peaked at 41.4% in June and 38.6% in December of 2008, the year of the M Beijing Olympics. However, from 2012 onwards, the net value of Hong M Kong people’s trust in the Central Government began to show a negative N N value, during which major incidents happened including the Scholarism O anti-national education incident in 2012, the “8.31” decision on the method O for the selection of the Chief Executive of the HKSAR by the National P P People’s Congress and the subsequent Occupy Movement (or Umbrella Q Movement) in 2014, riots in Mongkok during the Chinese New Year in Q 2016, and the interpretation of the Basic Law by the National People’s R R Congress in 2016, which resulted in several Legco members being S disqualified from holding office as Legco members for failing to meet the S oath-taking requirement, and so on. However, survey data also showed that T T from 2012 to September 2018 (namely the last survey prior to the proposed U U V V  - 143 - A A B B amendment to the Fugitive Offenders Ordinance), even though the net C value of trust was negative, the greatest negative value was only about C negative 15%, and for most of time the negative net value of trust remained D D in the single digits. E E 258. People’s trust in the Central Government changed drastically F F in 2019. The survey conducted between 28 February and 5 March 2019 G showed that the net value of trust was a negative value of -15%. The major G event which had occurred in the community at the time was the H government’s proposed amendment to the Fugitive Offenders Ordinance H I to deal with a young man who had committed homicide in Taiwan, with I the intent to send him back to Taiwan to face legal sanction; the young man J J had indicated that he was willing to go to Taiwan to bear responsibility for K the offence he had committed. However, there were concerns that the K Fugitive Offenders Ordinance would be used to extradite Hong Kong L L people to the Mainland to face trial after the amendment and, therefore, M objections were raised. When the survey was conducted in March 2019, I M believe the amendment bill had not even been formally tabled in the N N Legislative Council by the government but it had already caused great O controversy in society. When the legislative process formally commenced O in May to June, it immediately sparked large-scale and continued P P processions, assemblies, demonstrations, riots, etc. in the community. Even Q though the government announced in mid-June that the legislative Q amendment would be suspended and the amendment bill was withdrawn R R in September, protesters put forward other demands. The survey conducted S between 15 and 20 August 2019 showed that the net value of people’s trust S in the Central Government dropped to a negative value of -39.9%; and the T T survey conducted between 17 and 19 February 2020 showed that the U U V V  - 144 - A A B B negative net value of trust dropped further to -43%, meaning that no fewer C than 4 out of 10 people did not trust the Central Government. C D D 259. Under re-examination by Ms Eu SC, D2 stated that since the E implementation of the Hong Kong National Security Law in the HKSAR E on 30 June 2020, the findings of the surveys had shown that people’s trust F F in the Central Government had rebounded. According to the findings of the G survey conducted between 17 and 20 August 2020, the net value of G people’s trust was a negative value of -29.4%, which was higher than the - H H 43% registered in the previous survey; and the following survey conducted I between 24 and 26 February 2021 showed that the net value of people’s I trust had climbed up to a negative value of only -2.0%. Despite the arrest J J of the candidates for the pro-democratic camp’s 35+ primary election K before the survey was conducted, the significant increase in people’s trust K in the Central Government was not compromised. Under re-examination L L by Ms Eu SC, D2 also confirmed that although the negative net value of M trust shown in the next survey conducted between 20 and 26 August 2021 M had rebounded, it had only rebounded to a negative value of -3.9%, N N representing an increase of less than 2%; and the net value of trust shown O in the next survey conducted between 21 and 24 February 2022 went up to O a positive value of 21.1%, which was no longer at the negative level, and P P the time of the alleged offence also ended shortly before this survey was Q conducted (namely 29 December 2021). The data presented by the defence Q showing the findings of the two subsequent surveys also showed that R R people’s trust in the Central Government was no longer at a negative net S value. The net value of trust in July 2022 was positive at 20.8%, and that S in February 2023 was positive at 25.9%. T T U U V V  - 145 - A A B B 260. The defence argued that such surveys yielded objective data C which showed that at the material time in the present case, the social C atmosphere was not very unstable as claimed by the prosecution and that D D the Central Government was not in a weak position. Therefore, even if E there were traces of criticism in society, it would not result in arousing E hatred for the Central Government, let alone causing unrest. F F G 261. In my view, the defence is mistaken in its analysis of the G survey data. The defence only relied on the “net value of trust” as the H H factual basis to support its submission, but the net value of trust is in fact I reflective of the difference between the numbers of two categories of Hong I Kong people, namely those who trusted the Central Government and those J J who did not, rather than the actual number of people in each category. Take K the data collected in the survey conducted between 17 and 20 August K 202095 as an example, in the then Hong Kong community, people’s trust in L L the Central Government in percentage terms was as follows: out of every M 100 Hong Kong people, 20.1 “trust very much”, 8.1 “quite trust”, 8.5 “half- M half”, 12.2 “quite distrust”, 45.4 “distrust very much” and 5.7 “don’t know N N how to say”. In other words, in August 2020, among every 100 Hong Kong O people, only 28.2 trusted the Central Government while as many as 57.6 O distrusted the Central Government, and the remaining 14.2 could not be P P classified into any category. Q Q 262. In my view, when nearly 60% of Hong Kong people distrusted R R the Central Government, regardless of what the reasons were, and S regardless of whether the reasons were justified, they must have had S negative views of the Central Government. With such a mentality, they T T 95 See exhibit D2(265)(B) U U V V  - 146 - A A B B were naturally prone to accept any negative information and criticism of C the Central Government. Moreover, as most of them shared the same C views, they would mutually reinforce their negative views of the Central D D Government, thinking that their own views were completely correct and E this would be difficult to change. It is noteworthy that it is not the case that E the said nearly 60% of people who distrusted the Central Government only F F came into being in August 2020 because both the surveys conducted in G August 2019 and February 2020 showed that the percentage of Hong Kong G people who distrusted the Central Government was as high as 62.7%. In H H other words, for the 57.6% of Hong Kong people who distrusted the I Central Government in August 2020, most of them had been distrusting the I Central Government for one year or more. D2 mentioned in his evidence J J that many of his fellow journalists emigrated in early 2020. I do not know K and it is unnecessary for me to make a finding on whether the drop of about K 5% in the number of people who distrusted the Central Government in L L August 2020 was related to the outflow of emigrants. But in any event, M 57.6% is still a very large number. M N N 263. The survey data produced by the defence also show two O points. First, for people who were classified as being in “distrust” of the O Central Government, most of them held an attitude of “distrust very much”. P P This is clearly shown in the table (only survey data from August 2019 Q onwards are set out) below: Q R Survey Start Date Survey End Date Quite Distrust Distrust R distrust very S much S 2023-02-01 2023-02-09 9.9% 17.7% 27.6% T T U U V V  - 147 - A A B 2022-07-04 2022-07-07 9.6% 20.3% 29.9% B 2022-02-21 2022-02-24 7.8% 23.1% 30.8% C C 2021-08-20 2021-08-26 9.2% 32.4% 41.7% D D 2021-02-24 2021-02-26 8.4% 34.2% 42.6% 2020-08-17 2020-08-20 12.2% 45.4% 57.6% E E 2020-02-17 2020-02-19 11.0% 51.7% 62.7% F F 2019-08-15 2019-08-20 14.18% 48.6% 62.7% G G 264. Secondly, it can also be seen from the above tables that at the H H time of the alleged offence, i.e. from 7 July 2020 to 29 December 2021, the I percentage of people who distrusted the Central Government had remained I high over a long period of time: 57.6% in August 2020, 42.6% in February J J 2021, 41.7% in August 2021, and 30.8% in February 2022. Even in July K 2022 and February 2023, the percentage of people who distrusted the K Central Government remained at around 30% (29.9% and 27.6% L L respectively). The negative net trust value started to decrease in August M 2020, and a positive value started to appear in February 2022. It can be M seen from the figures that it was not because there was a significant N N decrease in the number of people who distrusted the Central Government, O but that there was a significant increase in the number of people who O trusted the Central Government. I believe the enactment of the HKNSL by P P the Central Government, which maintained the social order by restoring Q the general peacefulness of the HKSAR within a short period of time, was Q the reason why more people had chosen to trust the Central Government. R R Yet it is not necessary for me to make a finding on this issue. S S 265. As can be seen from the results of the opinion polls submitted T T as evidence by the defence, at the time of the alleged offence and before U U V V  - 148 - A A B B and after it, the percentage of Hong Kong people who distrusted the Central C Government was 30%, 40%, 50% or 60% of the population. No matter C what the percentage was, even if I assume that the population of Hong D D Kong was only 7 million during this period of time (the actual figure being E much higher), the number of people who distrusted the Central E Government ranged as much as over 2 million to over 4 million. These F F people certainly distrusted the SAR Government as well because they G certainly regarded the SAR Government as an extension of the Central G Government. H H I 266. As a juror, by applying common sense and life experience, I I am sure that the legitimacy and credibility of the government is an J J important factor for social cohesion and solidarity. If a large number of K people distrust the government, it would naturally give rise to conflicts and K escalate confrontations between the government and the people. This L L would automatically lead to social division. In addition, when people did M not have trust in the government, they were more likely to harbour M prejudices and negative assumptions. They might turn their distrust into N N suspicion and accusations against the government, interpreting normal or O legitimate conduct of the government as suspicious or problematic, even O when they lacked evidence, or solid evidence to support their accusations. P P In the absence of trust from people, it would be all too easy for the Q government to become a target of disinformation or rumour attacks. This Q is because people who distrust the government are more inclined to believe R R in the assumption that the government is guilty. S S 267. According to the above findings and data of the public opinion T T poll conducted by the University of Hong Kong, and the undisputed time U U V V  - 149 - A A B B of publication of the 17 articles in question, I find beyond reasonable doubt C that when Stand News published articles A1 to A3, about 57.6% of the C people of Hong Kong distrusted the Central Government; when it D D published articles A4 to A12, about 42.6% of the people of Hong Kong E distrusted the Central Government; when it published articles A13 to A15, E about 41.7% of the people of Hong Kong distrusted the Central F F Government; and when it published articles A16 and A17, about 30.8% of G the people of Hong Kong distrusted the Central Government. Another G background to bear in mind is that Stand News was regarded as the most H H credible online media used by almost all young people. I I G5.2 Considerations on articles A1 to A17 J J K 268. Based on the above findings on the context of the relevant K time period in Part G5.1, I consider the 17 articles as follows: L L M (A1 profile interview) M N N 269. Article A1 was a profile interview. The interviewee was Ho O Kwai-lam who was a candidate in the 35+ Primary Election. In the O interview, she advocated fighting against the Central Government and the P P SAR Government in different fields as follows: Q Q “Enter the Legislative Council. The Legislative Council is no longer R regarded as a place for political discussion, but a front for resistance. R All means would be used to deal with the CPC, instead of again seeking S S room to seesaw with the CPC.” T T U U V V  - 150 - A A B “Now we have only forced the CPC to ignite the fire, but we have not B seen the ‘burn’ yet. If Hong Kong people just wait passively for the C C 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’.” D D E “In the face of totalitarianism, we really have nothing. We can only use E our whole lives, our future, and even our physical bodies and lives as F F the price to fight against the state apparatus.” G G “... revolution is a quest for life, not for death. To resist is to seek H survival. Those who think mutual destruction is pessimistic are just H unaware of how bad Hong Kong has become. The pro-establishment I camp said Hong Kong will become peaceful after the enactment of the I NSL, but if that peacefulness is built on the prosecution of 600-odd J J people for riot; that is not peacefulness, is it ... Whether mutual destruction is pessimistic or optimistic depends on whether the Hong K K Kong you see is the real Hong Kong.” L L “She called her strategy ‘a breakup of the situation’, breaking up the M situation that the CPC has set for Hong Kong.” (Author's description of M Ho’s advocacy) N N O 270. At the time when this article was published, the 35+ O democratic primary election was going to be held on two consecutive days P P on 11 and 12 July 2020, which was about one week after the Q implementation of the HKNSL on 30 June 2020. There were 12 candidates Q in the New Territories East constituency of the 35+ democratic primary R R election. Ho was one of them. She knew very well that she could promote S her political ideology through her profile interview with Stand News. S T 271. In the article, Ho claimed herself to be of “the resistance T U U V V  - 151 - A A B camp”. When explaining what she meant by “resistance camp”, she said B C the Legislative Council was not a place for political discussion, but a front C for resisting the Central Government. She would try every means to deal D D with the Central Government without seeking room for seesawing. When E considering actions, she would not care about the price she had to pay, and E she thought that she could afford it. From this, we can see that her attitude F F towards the Central Government was absolutely confrontational and there G was no room for compromise. It shows her extreme hatred, disgust and G contempt against the Central Authorities and the SAR Government, or her H H exciting disaffection against them. I I 272. Ho also said her strategy was “a breakup of the situation”, J J “breaking up the situation that the CPC has set for Hong Kong”. The reason K she gave was: “If we follow the script of the CPC, Hong Kong will become K Macau. However, this city has its own pursuit of freedom, making the CPC L L unable to wipe out the voice of opposition, and making the CPC unable to M carry out their script.” Undoubtedly, by “situation” and “script”, she was M referring to Hong Kong’s constitutional status and order after the handover N N in accordance with the Basic Law. Obviously, she did not accept “one O country, two systems”, nor did she accept the legitimacy and authority of O the Central Government and the HKSAR Government. P P Q 273. In Ho’s view, the Central Government would not allow voices Q pursuing freedom in Hong Kong, and would suppress any dissent. R R Therefore, she thought there were only two options: “The CPC hits with S greater force, or Hong Kong becomes Macau”. By saying “Hong Kong S becomes Macau”, what she meant was that like Macau people, Hong Kong T T people would lose their freedom. Obviously, she was trying to make use of U U V V  - 152 - A A B people’s fear and emotional reaction towards the loss of freedom to make B C them believe and accept her advocacy. Undoubtedly, she was advocating C and inciting the public to take a confrontational position with the Central D D Government. E E 274. Ho’s stated option of “the CPC hits with greater force” F F actually meant that she would take the initiative to provoke the Central G Government, so that the Central Government would respond more strongly G to the protesters. In her view, “hits with greater force can bring uncertainty H H to Hong Kong. When foreign interests in Hong Kong are undermined, they I may intervene, they may condemn, they may even impose sanctions, I bringing objective losses to China. Chinese officials may have their assets J J frozen, Chinese goods may be subject to additional tariffs, Chinese K enterprises may be banned. China will have to deal with it. How to deal K with it, it is not known. Yet ‘not known’ is better than ‘Hong Kong L L becomes Macau’.” Author Yeung Tin-shui stated that this was the “route M of mutual destruction” in Hong Kong’s protests. M N N 275. Ho also said, “Now we have only forced the CPC to ignite the O fire, but we have not seen the ‘burn’ yet. If Hong Kong people just wait O passively for the CPC to make a move, ‘mutual destruction’ will be P P suppression only, and it cannot achieve the effect of ‘if we burn, you burn Q with us’.” It can be seen from the context that Ho advocated “mutual Q destruction” in her speech. Regardless of the price that she had to pay, she R R only wanted to hurt the Central Government and the SAR Government in S order to achieve her political demands. S T T 276. As shown by the undisputed evidence, before this article was U U V V  - 153 - A A B published, Ho had already signed the “Inked Without Regret”96 on 10 June B C 2020, stating that she would use the vetoing of the budget as a means to C force the Chief Executive to respond to the demands and so on. Ho D proposed, “Therefore, Hong Kong people’s protest must continue, it cannot D E stop.” There is no doubt that she was inciting others to attempt to procure E the alteration, otherwise than by lawful means, of any matter in Hong Kong F F as by law established, and to raise discontent or disaffection amongst the G inhabitants of Hong Kong. G H H 277. The article also said that a colleague of Stand News had once I asked Ho whether she had thought about her future. Ho said, “No. Many I protesters in this movement felt the same way, hey, what is the future? It J J cannot be seen at all. I know some persons, in the secondary school which K he attended, not to mention riots, even for those who were not arrested, K there were people who were beaten up by the police and threatened with L L rape, all sorts of things, and he was just a Form 2 student. How can a person M grow up in such an environment? How can one imagine that Hong Kong M has a future?” Ho described Hong Kong as a place where young people had N N no room for survival or growth. O O 278. The article ended with the following words from Ho: “I have P P a good friend who said something which left a deep impression on me: Q Revolution is a quest for life, not for death. To resist is to seek survival. Q Those who think mutual destruction is pessimistic are just unaware of how R R bad Hong Kong has become. The pro-establishment camp said Hong Kong S will become peaceful after the enactment of the HKNSL, but if that S peacefulness is built on the prosecution of 600-odd people for riot, that is T T 96 Exhibit P35(11A) U U V V  - 154 - A A B B not peacefulness, is it ... Whether mutual destruction is pessimistic or C optimistic depends on whether the Hong Kong you see is the real Hong C Kong.” Ho tried her utmost to persuade readers who did not agree with or D who had not yet agreed to the “mutual destruction” tactic. She created fear D E by saying that they had not yet realised they were only living under E totalitarianism, making them believe that Hong Kong was a place where F F there was no freedom at all, and where they could not live a normal life. G She tried to persuade the readers to believe that their only way out was to G resist the Central and the SAR Government and to engage in “mutual H destruction” so that they could have a chance to survive. H I I 279. At the time of the offence, there was social unrest and the J J political climate was extremely heated. The HKNSL had just been K promulgated and implemented. A large number of the public were K discontented with or were even against the SAR Government and the L L Central Government. Having considered all the circumstances, [I am of the M view that] article A1 would give rise to strong feelings of enmity towards M the Central Authorities and the SAR Government, denying their legitimacy N N and authority, and inciting readers to participate in or assist in the “mutual O destruction” of the Special Administrative Region. I find that the content O of article A1 caused potential detriment to national security or public order P P and safety, and had the intention of seriously undermining the authority of Q the Central Authorities or the SAR Government and the constitutional Q order of Hong Kong. Therefore, it had the seditious intentions as defined R R in section 9(1)(a) and (b) of the Crimes Ordinance, i.e. to bring into hatred S against the Central Authorities or the Hong Kong Government, and to S excite inhabitants of Hong Kong to attempt to procure the alteration, T T otherwise than by lawful means, of any matter as by law established. U U V V  - 155 - A A B B C (A2 profile interview) C D D 280. Article A2 was a profile interview. The interviewee was Chow E Ka-shing who was a candidate in the 35+ primary election. In the E interview, he mentioned Hong Kong nationalism and expressed his distrust F of “one country, two systems” and the Basic Law, etc. After reading it F G carefully, I find that although article A2 involved Chow’s presentation of G his political views, its main purpose was to criticise other democrats as H H follows: I I “From my experience in the primary election, I saw that the pan- J democrats had behaved a lot like ‘(political) scoundrels’ in the primary J election forums, and what they said was evasive ...” K K “If the Civic and the Democratic Party are willing to change, we would L L definitely welcome it ... but looking at the primary election forums, you M can see that they haven’t changed much ... they haven’t broken the old, M so we can only push harder to make the new ...” N N O 281. Article A2 also talked about the background of Chow, O including his self-positioning as a localist. Moreover, it can be seen that P P Chow was a newcomer who lacked a political background. He was not Q particularly popular among different camps, and he was not supported by Q any political party. Chow emphasised that his election strategy must R R include a radical idea, and therefore he had to promote Hong Kong S nationalism, saying there was no time to waste. At the same time, he also S accused the pan-democrats of not daring to point out the truth, and that T their performance in the Legislative Council was “obvious to all”. T U U V V  - 156 - A A B B C 282. The article recorded that when the reporter had asked Chow C about his political advocacy and how he had come up with his ideology, D Chow had mentioned the concepts of “Hong Kong National Party” and D E “Hong Kong Commonwealth”, etc. The article also recorded his clashes E with the District Councillor of the Democratic Party. Finally, the article F recorded Chow’s political objectives. In his view, the Central Government F G had already “torn the veil” and Hong Kong had entered a revolutionary G stage. Therefore, in his opinion, he only needed to continue to promote H H localism. I I 283. In my view, although article A2 mentioned Chow’s own J J discontent with the Central or the HKSAR Government, it spoke at greater K length about his discontent with the pan-democratic camp or the K democratic camp. Having considered all the circumstances, I am of the L L view that there is insufficient evidence to prove that article A2 had M seditious intentions. M N N (A3 profile interview) O O 284. Article A3 was a profile interview. The interviewee was P P Leung Fong-wai Fergus who was a candidate in the 35+ primary election. Q In the interview, he criticised the CPC and the SAR Government for their Q totalitarianism, and pointed out that the HKNSL was a tool for suppression. R R S 285. The article began with a brief account of Leung’s experience S in running for the District Council election and his subsequent T T disqualification, using this as an opportunity to describe his emotional U U V V  - 157 - A A B B journey in the campaign. C C 286. Leung was asked by the reporter what he thought of 35+. He D said the purpose was to make the Central Authorities “crazy”, and to make D E Hong Kong people lose their illusion about elections. He said he stood in E the election because he wanted to gain the attention of the Hong Kong F F people, and to challenge the regime by tearing down the illusion it had G created. G H “We usually have to face a lot of political problems and news. Every H matter can have a localist perspective, and can consolidate our I I uniqueness. The Legislative Council is just a place where messages can J come out more easily, but without the Legislative Council, will the J messages disappear? Not really; they can only be spread separately K from the small posts.” K L L “How to look at 35+; in the beginning, I myself wanted it to be the way it is today (crazy DQ), because I have no fantasy as to what I can do in M M the Legislative Council.” N N “The experience after having been a member of the District Council for O 7 months: the regime will definitely play tricks so that your public O opinion cannot manifest. For example, officials will not come to the P P meetings, boycott you, or the National People’s Congress will simply set up a provisional Legislative Council, where even if one is lucky Q Q enough to get in, it is impossible to go so far as to investigate police R brutality and officials. This is just a magical potion given by the outside R people to the people of Hong Kong.” S S “In fact, the objective of 35+ is to make the CPC crazy, to stop the Hong T T Kong people from having illusions about elections.” U U V V  - 158 - A A B B 287. When asked by the reporter, Leung expressed his love for C C Hong Kong many times. He also emphasised that he would not rashly D emigrate, and he knew that he loved Hong Kong’s Victoria Harbour D waterfront very much. E E F 288. The article recounted Leung’s personal experience in the F social movement and his thoughts on it, the origins of his political ideology G G and his views on the situation of the District Council and his work. He H indicated that he had worked closely with members of other political H parties, and had a good relationship with the Democratic Party and other I I traditional pan-democrats. He also thought that many District Councillors J were not very “local”, but in fact they supported in practice the concept of J localism. However, he thought the approach to work by the conservative K K camp in the District Council remained on individual performance. In his L view, the District Council should be a comprehensive platform for protest, L and it should not only talk about livelihood matters. M M N N 289. The article also recorded that Leung believed his being elected O as a District Councillor had “actually nothing to do with him”. He was just O fortunate enough to win because of “the two battles in the universities, P P which had raised the anti-police and anti-government sentiments in the Q community to the highest level”. Q R 290. Article A3 involved Leung’s presentation of his political R S views. However, having considered all the circumstances, I am of the view S that its main purpose was to explain Leung’s journey to political T T participation. When article A3 was published, the government had already U U V V  - 159 - A A B B announced the postponement of the 2020 Legislative Council election, and C the interviewee had been disqualified from running in the Legislative C Council election. Running in the Legislative Council election was D impossible. Although article A3 involved Leung’s presentation of his D E political views, it does not contain any particular words to vilify or E denigrate any particular side. Having considered all the circumstances, I F am of the view that its main purpose was to explain Leung’s journey to F G political participation, and there is insufficient evidence to prove that G article A3 had seditious intentions. H H I (A4 blog post) I J J 291. Article A4 was a blog post written by Chan Pui-man. The K article began by asking readers the following question: K L L “Which of the following incidents would bring you into hatred and contempt against the HKSAR Government?” M M N 292. After asking the question, the article listed three instances of N law enforcement by the police. The first one concerned the aforementioned O O Tam Tak Chi case in which the defendant was charged with dissemination P of seditious words. The second and third cases were respectively about a P girl who had been arrested for violating the anti-epidemic measures in Q Q relation to social gathering restrictions, and a bus driver who had been R charged with careless driving at the scene of a procession. In the second R and third cases, the articles described law enforcement by the police in a S S negative way. Then the articles attacked the SAR Government with regard T to the Tam Tak Chi case with radical and sensational words as follows: T U U V V  - 160 - A A B B “By all sorts of ways and means, the regime is making speech C C punishable, and words liable to imprisonment. Under the NSL, D ‘Liberate Hong Kong, revolution of our times’ is an offence ... When D the NSL is not applicable, then the old draconian law will be used to E the full without mercy... The regime warns the Hong Kong people by E pursuing Fast Beat [Tam Tak Chi]. The red line keeps tightening and F F the goal post keeps moving, so whoever is superior and whoever is fierce will be able to call a stag a horse.” G G H “This conduct of the Hong Kong police has been widely covered by the H foreign media, bringing more people all over the world into hatred and I contempt against the HKSAR Government and even the Central I Government in Beijing...” J J K 293. In my view, the main objective of article A4 was to attack the K law enforcement and prosecution of Tam Tak Chi case, making use of the L L other two cases to adversely describe the law enforcement of the police to M enhance the impact of the attack. M N N 294. Tam Tak Chi, the girl and the bus driver were all arrested on O 6 September 2020. Tam Tak Chi set up a street booth on the day of the O grand procession in Kowloon and disseminated seditious words. The 12- P P year-old girl was rounded up by the police at Sai Yeung Choi Street in Q Mong Kok. The Citybus driver was arrested for the offence of dangerous Q driving, etc. when driving along Nathan Road during the Kowloon grand R R procession because of his driving manner, involving the sounding of the S horn for no reason. S T T 295. The author compared these three cases and then asked which U U V V  - 161 - A A B B case would bring into hatred and contempt against the HKSAR C Government. Obviously, the author was making use of the compassion and C sympathy general people had for the girl. However, Tam Tak Chi’s case D D was different from the other two cases. The author did not make it clear E that Tam Tak Chi was involved in the dissemination of seditious speech on E the street on a number of occasions, and he had been arrested and released F F on bail on two occasions. But he continued to break the law, leading to his G third arrest, and only then was he formally charged. His case was brought G up for mention on 8 September when he was refused bail. This was H H reported by Stand News 97. The author also failed to tell the readers that I Tam Tak Chi had conducted an unauthorised assembly by setting up a I street booth. These allegations were reported in the news, including Stand J J News 98 . Given the author’s occupation as a deputy director of the K newspaper, it is inferred that she must have known about this. K L L 296. The author’s comparison of the cases with the girl and the bus M driver was definitely inappropriate. Their cases involved a single complaint M against the law enforcement of the police. Tam Tak Chi had attacked the N N legality and legitimacy of the regime and the Government. Even if the O police had made mistakes in the law enforcement procedures of the girl and O the bus driver, it would not legitimise Tam’s conduct. The author was P P clearly using incomparable examples to incite public hatred towards the Q Government. Q R R 297. On the other hand, in so comparing, the author undoubtedly S S 97 T Exhibit P33(40) T 98 Exhibit P33(40) U U V V  - 162 - A A B B indicated, explicitly or implicitly, that she supported the actions of Tam C Tak Chi, and that there was no problem with Tam Tak Chi’s actions, that C they did not constitute any offence, that the arrest of Tam Tak Chi D D constituted illegitimate suppression, bringing the public into hatred against E the Government and the law enforcement agency. E F 298. The author even said, “The regime warns the Hong Kong F G people by pursuing Fast Beat. The red line keeps tightening and the goal G post keeps moving, so whoever is superior and whoever is fierce will be H H able to call a stag a horse.” The allegation of not acting in accordance with I the law was obviously vilifying the Government, the law enforcement I agency and the court. In the judgment of Tam Tak Chi’s case, it can be seen J J that the police law enforcement and prosecution were legitimate and K lawful. I also agree with the judgment of the trial judge that police are part K of the “administration of justice” under section 9(1)(c) of the Crimes L L Ordinance 99 . The wordings of the article were radical and sensational M without any objective basis, completely dismissing the need for law M enforcement by the police. Moreover, the other two cases should not have N N been used as a reason to attack the law enforcement in the Tam Tak Chi O case. The two cases were cited just to incite the readers’ antagonistic O feelings against the Government. Section 9(2) of the Crimes Ordinance P P does not apply. Q Q 299. At the time of the offence, there was social unrest and the R R political climate was extremely heated. A large number of the public were S discontented with or were even against the SAR Government and the S Central Government. Having considered all the circumstances, I find that T T 99 [2022] HKDC 208 Paragraph 82 U U V V  - 163 - A A B B the content of article A4 caused potential detriment to national security or C public order and safety, and had the intention of seriously undermining the C authority of the Central Authorities or the SAR Government, and the D D administration of justice in Hong Kong. Therefore, it had the seditious E intentions as defined in section 9(1)(a) and (c) of the Crimes Ordinance, E i.e. to bring into hatred against the Central Authorities or the Hong Kong F F Government, and to bring into hatred against the administration of justice. G G (A5 blog post) H H I 300. Article A5 was a blog post written by Law Kwun-chung. At I the time when A5 was published, he was a fugitive who advocated the J J independence of Hong Kong and had absconded overseas. At the beginning K of the article, he vilified the HKNSL as a tool to suppress freedom of K thought and speech, completely ignoring the fact that spreading ideas of L L Hong Kong independence in schools undermined the constitutional status M of the Hong Kong Special Administrative Region after the reunification. M The article attacked the HKNSL for suppressing freedom of thought and N N speech: O O “The greatest threat to society after the NSL has come into effect is not P only the unjustified arrest and long-term imprisonment of protesters or P politicians, but that it also gives the pro-establishment camp who is in Q Q league with those in power a say in abusing the law, suppressing thought and speech in every institution.” R R S 301. The example given by Law Kwun-chung confounded right S and wrong. The HKNSL has plugged the loopholes in the previous law, so T T teachers can fearlessly teach students who have gone astray without being U U V V  - 164 - A A B B afraid of those who have abused and weaponised the freedom of speech. C However, Law described teachers as being in league with those in power. C Law even spread the fear that under the HKNSL, there were to be more D D individuals who would monitor one another, destroying the trust among E people and the relationship in civil society. He vilified the government for E using the HKNSL to break the connections between people: F F “... after the passage of the NSL, ... the ‘national security net’ that G G permeates various systems and domains will intensify. In addition to H the top-down regulations, there will certainly be more monitoring H among individuals in the future, destroying the trust among people and I the fabric of civil society. By breaking the connections between people, I totalitarianism seeks to disintegrate the potential for resistance, so that J J we will live in a society in which it will be impossible to believe in solidarity and co-operation.” K K L 302. The article then pointed out how Hong Kong people should L resist the governance under the HKNSL: M M N “... The implementation of the NSL is of course a big mistake of the N CPC, but it has undoubtedly forced the people of Hong Kong to enter a O ‘defensive’ stage, with probing and pestering as the main axes, and with O the objectives of preserving strength, weakening the other side and P P widening the battlefront. Therefore, it is all the more important for Q various ‘non-political’ organisations to spread in this political storm. Q Even if they cannot be as high-profile as they used to be, they can hold R on to some basic values. This is already a sign of defiance under the R high-handed rule of the CPC − and the iron fist of the CPC has to pay S S a heavy price. It is constantly subjected to great international pressure, weakening the relationship with ideal alliances such as Europe.” T T U U V V  - 165 - A A B B 303. In my opinion, article A5’s description of the implementation C of the HKNSL has no objective basis at all, and is tantamount to creating C fear as a form of attack. The article even instructed the readers to use “non- D D political” organisations to liaise, hide and spread in a low-profile manner. E Obviously, the aim was to incite Hong Kong people to get ready to act E again at any time, to weaken the governance of the Central Authorities and F F to widen the front against them. Section 9(2) of the Crimes Ordinance G clearly does not apply. In the light of the social unrest and unstable public G sentiment at the time of the offence, I find the content of article A5 caused H H potential detriment to national security or public order and safety, and had I the intention of seriously undermining the authority of the Central I Authorities or the SAR Government, and the administration of justice in J J Hong Kong. Therefore, it had the seditious intentions as defined in section K 9(1)(a) and (c) of the Crimes Ordinance, i.e. to bring into hatred against the K Central Authorities or the Hong Kong Government, and to bring into hatred L L against the administration of justice. M M (A6 profile interview) N N O 304. Article A6 was a profile interview, and the main interviewee O was Law Kwun-chung. Law mentioned in the interview that he advocated P P for foreign countries to sanction Chinese and Hong Kong officials, and Q sniped at the Chinese Foreign Minister who was visiting Europe, and so Q on. At the time of the interview, Law had already left Hong Kong and was R R in the UK. Having read the article carefully, I consider that although article S A6 involves Law’s expression of his political views, the focus of the article S is on his life in the UK, as follows: T T U U V V  - 166 - A A B “After being exiled to London ... Law Kwun-chung has been busy: he and B Luke John de Pulford, member of the Conservative Party Human Rights C C Commission, have launched crowdfunding campaigns ... and he is constantly giving interviews to the foreign press.” D D E “... He spends the rest of his time preparing speeches for events or writing E articles for submission to the media. ...” F F “His journey is hurried and his footsteps are not confined to the UK.” G G H 305. At the beginning of the article, it mentioned an interviewee H under the pseudonym, Doris. Doris had participated in some support I I positions in the anti-ELAB movement, and later chose to bring her mother J and son to live in the UK after the HKNSL came into effect. However, the J act of leaving Hong Kong for the UK made her feel guilty, and this feeling K K of guilt drove her to insist on participating in the rallies even when she was L abroad, which brought out that Law also shared the same feeling of guilt. L M M 306. The article mentioned Law’s busy life in the UK, as well as N his rushing to Italy and Germany to petition, sniping at Wang Yi, Chinese N Foreign Minister during his foreign visits, so that Luigi Di Maio, Italian O O Foreign Minister would mention the situation of Hong Kong to Wang. P P 307. Law also mentioned that he was wanted for “being allegedly Q Q involved in incitement to secession” a month after he had left Hong Kong, R but said the warrant “proved why he had to leave” and that he chose to face R his country with action. S S T “Who can really be completely free from fear in the face of the State T apparatus? Yet, how we respond to fear is a choice. I choose to face it with U U V V  - 167 - A A B action − I have always advocated that Hong Kong should have democracy B and autonomy, that foreign countries should impose sanctions on the Chinese C C and Hong Kong officials who abuse human rights, and that the international community should actively respond to the Xinjiang concentration camps, the D D collapse of Hong Kong’s autonomy and so on. All these initiatives will E remain unchanged even if I am on the wanted list.” E F F 308. The article mentioned some of Law’s thoughts on the G HKNSL; for example, he thought that the HKNSL was obviously meant to G target international advocacy work and impose particularly severe H H penalties. The article also mentioned that out of fear for his personal safety I which might be threatened, Law had been living with caution overseas. I J J 309. According to the article, Law was worried when he learnt that K “Agnes Chow Ting was arrested for allegedly violating the National K Security Law and Joshua Wong Chi-fung was charged for unlawful L L assembly”, but due to the HKNSL, he also avoided contacting them. M However, this also aggravated Law’s sense of guilt, “making me feel that M I have to do a lot of work before I can to some extent put my mind a bit at N N ease.” O O 310. Having considered article A6 as a whole which focuses on P P Law’s post-exile experience and psychological journey, I am of the view Q that the evidence is insufficient to prove that article A6 has seditious Q intentions. R R S (A7 blog post) S T T 311. Article A7 was a blog post written by Law Kwun-chung. The U U V V  - 168 - A A B B article described the society as being in a dark valley after the C implementation of the HKNSL: C D “Every day, whether in Hong Kong or overseas, I read one bad news story D after another ... But it’s because I have been through the lows that I better E E understand the cycle of social movements and how to get through the F darkness in the troughs ...” F G 312. Using different examples, the article emphasised that the G social movements that took place in Hong Kong were actions to regain H H freedom from the regime: I I “Social movements are inherently a contest between the strong and the weak. J J No one, no matter how blindly optimistic, can mistake the resources and influence of the Chinese Communist Party as being comparable to those of K K the protesters. Gandhi’s anti-colonial movement, Mandela’s anti-apartheid L operation, and more pertinently, Taiwan’s pro-democracy protests, have all L gone through a long and bitter journey so that rights and freedoms could be M regained from the hands of tyrannical powers under the conditions of M timeliness, opportunity and human relations.” N N O 313. Referring to the social movements that Hong Kong had O experienced over the years, the author reminded readers that social P P movements inevitably involved differences in power and that those who Q resisted would inevitably bear a great price. He emphasised that social Q movements were caused by the excessive power of those in power and the R R intolerable exploitation of the powerless, which led to the desperate S resistance of the people. In his article, the author incited the sensation of S martyrdom in his readers, stressing that bearing the price was part of the T T nature of social movements, and encouraged them to challenge the U U V V  - 169 - A A B B governance of the government and the Central Authorities regardless of the C consequences: C D “The same applies when it comes to the framework of social movements. This D is the natural structure of a social movement: it is precisely because those in E E power have too much power, and their exploitation, suppression and F oppression of the powerless have reached an intolerable level, that a group of F people, who have put aside their own personal gains and losses and who are G value-driven, will fight back with all their might. This structure of power G disparity is a precondition for social movements, and it is also something we H need to learn to live with – loss is inevitable, but the key is how to live with H it and maintain the determination to win.” I I J 314. The article also referred to the suppressions and various kinds J of unjustifiable injuries the protesters were subjected to: K K L “As we enter 2019, the pro-democracy movement has transcended its L previous pattern of being based on specific events, and has entered an era of M protracted warfare at all levels of civil society. At this point, the test of our M conviction, cohesion and endurance is more challenging than ever. Yet, at the N N same time, our ability to move the world is several levels higher than it has O been in decades. Even though the twists and turns are long, the changes are O ongoing.” P P 315. The article used a football match as an analogy for social Q Q movements, encouraging readers to note that the day was not yet over and R the winner was not yet known, pointing out that the democratic movement R had entered a full-scale protracted mode from 2019 onwards, and S S emphasising that protesters only needed to persevere to make ongoing T changes. T U U V V  - 170 - A A B B C 316. In my opinion, article A7 refers to the unjustified suppression, C disappearance, assault and prolonged imprisonment of the protesters D D without mentioning any objective basis, with the aim of spreading hatred E and anti-government sentiments by means of disinformation and boosting E the morale of the protesters in Hong Kong to demand for full-scale and F F protracted protests. The whole article is to teach readers how to maintain G the will to fight against the Central Authorities and the SAR Government, G and to incite readers to take the actions he suggests. Section 9(2) of the H H Crimes Ordinance does not apply. In the light of the social unrest and I unstable public sentiment at the time of the incident, I find that the content I of article A7 caused potential detriment to national security or public order J J and safety, and had the intention to seriously undermine the authority of K the Central Authorities or the SAR Government, and therefore had the K seditious intention as defined in section 9(1)(a) of the Crimes Ordinance, L L i.e. to bring into hatred against the Central Authorities or the Hong Kong M Government. M N N (A8 profile interview) O O 317. Article A8 was an interview with Hui Chi-fung, in which he P P mentioned declaring war on the Hong Kong government and fighting for Q foreign sanctions against Hong Kong. At the time of the interview, Hui had Q already left Hong Kong and was in Denmark. R R S 318. The article mentioned that Hui had been allowed to leave S Hong Kong on the grounds of an official duty visit while on bail. Hui later T T announced his exile and resignation from the Democratic Party on social U U V V  - 171 - A A B media, and brought his family with him so that he could “fight” with the B C Hong Kong government in a high profile manner. Hui stressed that the C sudden overseas exile was not part of his plan, and that he had learnt of the D D change in his itinerary only after he had arrived in Denmark. It was only E after he had received his family in Denmark that his escape plan was E formalised. The article also mentioned the criticism made against his F F action, without naming him, by the Chief Executive Mrs Carrie Lam. G G 319. The article reported that many political figures who had left H H Hong Kong had announced that they had disowned their families; however, I Hui said through the reporter that he would not be cut off from Hong Kong I nor his family. He also said he hoped to make a living overseas by working J J on international fronts, outlining some of his action plans, including how K he would divide his work with other fugitives. K L L 320. After a careful reading, I am of the view that although article M A8 involves the expression by Hui of his political views, it focuses on the M process of his departure from Hong Kong and his subsequent movements. N N Considering it as a whole, I find that the evidence is not sufficient to prove O that article A8 has seditious intentions. O P P (A9 profile interview) Q Q 321. Article A9 was a profile interview with Leung Chung-hang R R Sixtus, in which he questioned the Hong Kong judicial system, mentioned S the idea of seeking foreign sanctions against Hong Kong, and the idea that S only two countries can have two systems. At the time of the interview, T T Leung had already left Hong Kong and was in the United States. U U V V  - 172 - A A B B C 322. This was a video interview after Leung had announced his C exile in the United States. Through the reporter, Leung said that he had D D settled down in the US, but he was not in a good mood and was E experiencing “guilt-like feelings”: E F “He described the feeling as similar to that of guilt, which he believed many F Hong Kong people outside of Hong Kong had, ‘wanting to do something to G G atone for their sins, to buy an atonement ticket’.” H H 323. Leung said that he had been followed after his release from I I prison for the storming of the Legislative Council Complex in September J and felt that he was on the radar of the regime. He also expressed his J distrust of the judicial system and believed that he would be put on the K K wanted list. L L 324. The article reported Leung talking about his work on the M M international front. He hoped to fight for sanctions on the financial system N when the Democratic and Republican parties in the US had reach a N consensus to support Hong Kong; he also hoped to fight for a lifeboat O O programme for those born after 1997 and who did not have a BNO; and he P supported the plan of the former British Consulate staff member, Simon P Cheng Man Kit, who was living in exile in the UK, to set up a “Shadow Q Q Parliament” in the UK. R R 325. Through the reporter, Leung claimed that his political beliefs S S had not changed. He questioned the constitutional status of Hong Kong set T by the Central Government, saying that only when having two countries T U U V V  - 173 - A A B B can there be two systems. He also expressed the view that that he did not C believe any place under the CPC could have a democratic system. Leung C even directly said that the CPC was not an honest player, which reflected D that Leung was strongly against “one country, two systems” and the D E Central Government. However, he did not go further to encourage others E to follow his idea: F F “Leung’s current profile picture on his FB page is still the photograph taken G G when he was taking the oath at the Legislative Council four years ago wearing H the ‘Hong Kong is not China’ flag, which led to Leung being disqualified at H the time of the oath-taking controversy.” I I “Four years have gone by. Leung said his political beliefs remain unchanged: J J ‘Only when having two countries, you can have two systems.’ This is one of the things I say all the time ...” K K L “I don’t believe that any place under the rule of the CPC could have a L democratic system or could be a free place.” M M “... last year, the people of Hong Kong have proved with their blood, sweat N N and lives that ‘one country, two systems’ does not work.... And this O movement will be powerful evidence to tell the international community that O ‘the CPC is not an honest player’.” P P 326. The article also reported that Leung had been accused of being Q Q an undercover mole a number of times. Leung stressed that he would not R query others, and that as long as Hong Kong people were united, there was R no need to distinguish between the localist camp, self-determination groups S S or the pan-democratic camp. T T U U V V  - 174 - A A B B 327. Upon close scrutiny, I am of the view that although article A9 C involves the expression of Leung’s political views, it does not go further to C encourage others to act. I find that the evidence, taken as a whole, is not D D sufficient to prove that article A9 had seditious intentions. E E (A10 blog post) F F G 328. A10 was a blog post written by Cheung Kwan-yang. The G article described the CPC as the axis of evil, accused the Central H H Government of using material power to coerce people who pursue justice, I and also accused the Central Government of being full of lies and inflicting I harm on Hong Kong’s autonomy, in an attempt to bring readers into hatred J J against the Central Government: K K “... Only when the whole world truly understands how this evil axis of the L CPC uses business to force its way into politics and attempts to use material L power to subjugate all free people who embrace justice and equality to its M M authority, can the world formulate the right strategy to prevent the rise of the CPC. Only when the whole world understands how the CPC, which is so full N N of lies, is oppressing Hong Kong and inflicting harm on our autonomy, can it O rescue the people from the brutality of the iron-fist rule of the CPC.” O P P 329. In the face of the suppressions by the Hong Kong Government Q and the Central Government, Cheung interpreted that as the Central Q Government being “in fact strong on the outside but weak on the inside, R and is of the mentality of an anxious dog jumping over the wall”, so as to R S motivate the protesters into believing that the past actions had exerted great S influence on the Central Government, in an attempt to belittle the authority T T of the Hong Kong Government and the Central Government in their U U V V  - 175 - A A B B governance: C C “In the face of the madness of repression, the arrest and exile of comrades, it D is hard to avoid losing heart and becoming discouraged, but we do not have D to be overly worried and disheartened. Behind the series of suppressions, it E E also reveals the fact that the CPC is strong on the outside but weak on the inside and is of the mentality of an anxious dog jumping over the wall, and F F that the past revolution of the times have not only moved the world but, more G importantly, they have shaken the CPC itself. When a regime is used to ruling G by fear and taming its people, it is most afraid of seeing a world that is so full H of vitality and vigour.” H I I “The authoritarian CPC is incapable of understanding what free people aspire to, and why some people are willing to resist rather than fall. The people of J J Hong Kong have demonstrated in the past that they have overcome fear, K frustration and the risk of retaliation by the regime, and have chosen to rise K up and overcome their fear with action. In the future, even if I am wanted by L the malicious national security law, I will continue to uphold the undying will L of Hong Kong people to resist. Every inch of the regime’s suppression of me M M will only become the greatest recognition of my beliefs, and I will continue to shout at the top of my voice overseas for my fellow benevolent and N N righteous comrades, and continue my international advocacy work, to fight O for the ultimate democracy and freedom for Hong Kong.” O P P 330. The article went on to encourage Hong Kong people to put up Q resistance as follows: Q R “... I believe that no matter how much the regime uses dirty tricks to suppress R and belittle the values that Hong Kong people believe in, through our own S S actions and beliefs, we can still pass on the story of Hong Kong people’s T pursuit of democracy and freedom. Truth cannot be suppressed by power, and T truth cannot be eroded. The will of history will lead us to break the yoke of U U V V  - 176 - A A B totalitarianism, and I am confident that the people will ultimately return home B victorious.” C C D 331. At the time of the incident, there was social unrest and public D sentiment was unstable. Considering the case as a whole, I find that article E E A10, without providing any objective basis, abused the Central Authorities F or the HKSAR Government, and the content of the article caused potential F detriment to national security or public order and safety, with the intention G G of seriously undermining the authority of the Central Authorities or the H SAR Government, and had the seditious intention as defined in section H 9(1)(a) of the Crimes Ordinance, i.e. bringing into hatred against the I I Central Authorities or the Hong Kong Government. Section 9(2) of the J Crimes Ordinance does not apply. J K K (A11 blog post) L L 332. A11 was a blog post written by Allan Au Ka-lun. The article M M reviewed the year 2020 as follows: N N “2020 is 1997, a real handover, a deeper convergence of political systems, O and Xi Jinping’s new phrase ‘deeper integration’. 2020 is also 2047, fifty O years of no change has mutated, ‘one country, two systems’ is a confirmed P P case of serious illness, on intubation about to die.” Q Q “Epoch-making, ground-breaking, a promise broken, a miracle crumbling, R and a city ending in a few key words.” R S S “‘Wuhan Coronavirus Disease’ ravaging for a year is just the beginning. The plague is a once-in-a-century event that subverts living habits, and with the T T governance of the plague in place, it creates the perfect storm. The War Wolf U U V V  - 177 - A A B is confident, has changed the rules of the game and is no longer hiding its B ferociously vile face. A new Cold War has begun, and Hong Kong is the C C battlefield.” D D “For the first time, the word ‘exile’ is associated with ‘Hongkongers’. Under E the tyrannical government, Hong Kong has seen the first generation of E political prisoners, the first generation of exiles, who have fled to the sea of F fury, and who have abandoned their bail and fled.” F G G “‘Refugees’ have reappeared. Refugees are different from immigrants in that H they have left the country leaving behind everything; for example, when the H plague broke out, families ran away to the infected areas in the closed cities I of England, and the tyrannical government was more ferocious than the I Wuhan Coronavirus Disease. Fortunately, the people of Hong Kong have the J J refugee gene. Their ancestors escaped from the north to the south and managed to steal stability for two generations; and now history is repeating K K itself, uprooting, managed with ease from experience.” L L “The legal weapon of ‘National Security’ has come out of nowhere to M demonstrate the era of ‘let there be law and there is law’, with the use of M incriminating by words, white terror, indiscriminate arrests and prosecutions, N N imprisonment before trial, and the use of fabricated accusations of collusion with foreign powers. In the name of ‘National Security’, the public O O prosecution and law enforcement systems have monopolised power, the Hong P Kong Police Force has been transformed into a powerful department, waves P of criticism and denunciation have surged in the education system, and Fatty Q Jimmy Lai is the target in the media sector.” Q R R 333. Au claimed that “one country, two systems” had already S ended in 2020. At that time, officials of the Central Government and the S Establishment had said that the promulgation of the HKNSL would be a T T “second reunification”, but what they meant was that the Central People’s U U V V  - 178 - A A B B Republic of China would really exercise sovereignty over Hong Kong C again. Undoubtedly, during the anti-ELAB movement, the atmosphere of C Hong Kong’s independence was prevalent, and many people sought D D foreign assistance. The promulgation of the HKNSL was to ensure that E China’s sovereignty would not be infringed upon. The fact that Hong Kong E is an inseparable part of the People’s Republic of China has long been F F stipulated in the Basic Law. The so-called second reunification is only a G reiteration of China’s sovereignty, and neither the HKNSL nor any G provision has mentioned that the two systems under the Basic Law would H be affected. Au’s statement that year 2020 saw “one country, two systems” H I as a confirmed case of serious illness was a smear campaign against the I Central Government, the SAR Government and the HKNSL. J J K 334. In using the phrase “a broken promise”, Au obviously meant K that the promise of full direct election of the Chief Executive and the L L Legislative Council had not materialised. However, the Basic Law only M promises a high degree of autonomy to the people of Hong Kong, and full M direct election will of course depend on the local situation. When many N N people in Hong Kong demand that the Central Authorities should not be O involved in Hong Kong’s affairs at all, this is tantamount to independence, O which cannot be allowed. In writing such an article, Au was only stirring P P up and echoing the sentiments of those who were still pursuing the Q independence of Hong Kong. The explanations given by Au for each new Q term he used were in fact just his own political expressions. R R S 335. He claimed that the legal weapon of “National Security” has S come out of nowhere to demonstrate the era of “let there be law and there T T is law”. However, it is an indisputable fact that before the enactment of the U U V V  - 179 - A A B B HKNSL, there was no law in Hong Kong to protect national security. C Moreover, the protection of national security is of course a matter for the C State, which can authorise the SAR to enact laws on its own, or the State D D can do so itself. The political issues arising from the 2019 anti-ELAB E movement had to be resolved immediately, and the enactment of legislation E on national security had to be done without delay. It was impossible for Au F F to be unaware that the Legislative Council of Hong Kong could not operate G at all during the anti-ELAB movement, as it took half a year for pan- G democratic members to elect the Chairman of the House Committee. H H Moreover, Au never pointed out which provisions in the HKNSL are I provisions not found in other countries. I J J 336. In my opinion, A11 describes the constitutional system, the K Central Government and the governance of the HKSAR Government in an K extremely negative light (e.g. “‘one country, two systems’ was a confirmed L L case of seriously illness, on intubation about to die”, “a miracle M crumbling”, “the governance of a plague”, “Under the tyrannical M government, HK has seen the first generation of political prisoners”, “the N N tyrannical government was more ferocious than the Wuhan Conronavirus O Disease”). It also smears Chinese diplomats with the imagery of O “ferociously vile face”. The article went on to attack the HKNSL and even P P the judicial system without providing any objective basis. Section 9(2) of Q the Crimes Ordinance does not apply. In the light of the social unrest and Q unstable public sentiment at the time of the incident, I find that article A11 R R caused potential detriment to national security or public order and safety, S with the intention of seriously undermining the authority of the Central S Authorities or the SAR Government, the constitutional order of Hong T T Kong, and the administration of justice in Hong Kong, and had the U U V V  - 180 - A A B B seditious intentions as defined in section 9(1)(a), (b), and (c) of the Crimes C Ordinance, i.e. to bring into hatred against the Central Authorities or the C Hong Kong Government, to excite inhabitants of Hong Kong to attempt to D D procure the alteration, otherwise than by lawful means, of any other matter E as by law established, and to bring into hatred against the administration of E justice. F F G (A12 blog post) G H H 337. A12 was a blog post written by Allan Au Ka-lun. The article I firstly criticised the scope of application of the HKNSL to be too wide: I J J “The text of the provision is already broadly written, with offences almost all-encompassing, and with the addition of the words ‘etc.’ and ‘other’, the K K power has no boundaries, becoming a wildcard, a sure-winner.” L L 338. The article went on to criticise the system of appointed judges, M M questioning whether judges could handle cases independently and N impartially: N O “The Chief Executive’s strict selection of national security judges seizes the O high ground through personnel deployment, and even who the judges are is a P P secret. You don't intervene in the trial of cases by judges, but you do intervene Q in the selection of judges to hear cases concerning the national security law, Q and you do it in a black-box operation, with the list of judges not being R released ... ‘Judges will not be interfered with in the trial of cases’? If the law R is a bad script, the public prosecutor’s system will have unlimited power and S S act arbitrarily without any checks and balances, and the judges, however independent and impartial they may be, can only act according to the script. T T U U V V  - 181 - A A B They put on their official robes and wigs to perform a bad show, and become B the legal craftsman who rule the people according to the law.” C C “... The officials of the SAR Party have the character of wolves. The Secretary D D for Justice is not soft in hunting down and pursuing political opponents, and E he can review the sentence, appeal again and again, and stalk them to the end E with legal procedures, and the Standing Committee of the National People’s F Congress (NPCSC) guards the tailgate, so that they can ‘explain’ and F ‘interpret the law’ at any time, and those national security judges who are G G aware of the current situation will understand the meaning of ‘justice’ in the H new era. ...” H I 339. Au criticised the HKNSL not only in A12, but also in other I articles, which included A14, including the designation of judges, the J J provision on bail, and trials without jury. Au was not a lawyer; of course K he could seek legal advice, and he could even do research, but he never K pointed out which provisions in the HKNSL were different from those in L L other countries (including common law countries) and/or which provisions M these countries think should not exist. M N N 340. In any event, Au could have made reference to the precedents O of the Hong Kong courts. A12 was released in late December 2021 and he O had seven months to study the precedents of the Hong Kong courts. P P Q 341. The Court of First Instance gave judgment on as early as 21 Q August 2020, in the case of Tong Ying Kit [2020] HKCFI 2133, making it R R clear that the HKNSL did not involve a presumption of guilt in the S consideration of a defendant’s application for bail. Furthermore, under S section 44 of the HKNSL, the Chief Executive can assign judges of T T different ranks to be the designated judges for cases involving the HKNSL, U U V V  - 182 - A A B B which does not interfere with or affect the independence of the Hong Kong C judiciary, “since the Judiciary has full power to deal with and decide on C any case that a judge handles”. There is also a Special Criminal Court in D Ireland that deals with specific cases. “Section 39(2) of The Offences D E against the State Act 1939 provides that ‘each member of a Special E Criminal Court shall be appointed, and be removable at will, by the F F Government’”. G G 342. The Court of First Instance also dealt with the issue of the bail H H threshold under the HKNSL in the abovementioned case, Tong Ying Kit. I Having made reference to the case law of common law jurisdictions, the I Court of First Instance held that even if the law provides that no bail shall J J be granted unless the court is satisfied that the defendant will not commit K any further offence against national security, it is not unconstitutional since K the judge still has the discretionary power to grant the defendant bail. Prior L L to the publication of A12, Au could not have been unaware that on 23 M December 2020, Alex Lee J, a designated judge under the HKNSL, had M granted bail to Lai Chee-ying; as evidenced by Au’s article, he was very N N concerned about Lai: [2020] HKCFI 3161 (Date of Judgement: 29 O December 2020). In the UK, under section 25 of the Criminal Justice and O Public Order Act 1994, bail may only be granted in exceptional P P circumstances. The European Court of Human Rights held that the relevant Q provision did not deprive the defendant of his rights: Kevin O'Dowd v The Q United Kingdom, Application no. 7390/07 (21/09/2010). R R S 343. In HKSAR v Lai Chee Ying (2021) 24 HKCFAR 33 (English S original) & 73 (Chinese translation) (Date of Judgment: 1 February 2021), T T the Court of Final Appeal clearly explained the rationale for and the U U V V  - 183 - A A B process of NPC’s enactment of the legislation (Part B, paragraphs 9-22). It B C explained the need to protect human rights, etc. (paragraph 22). It C explained “the convergence, compatibility and complementarity” between D D the national security law and local law (paragraph 29). It explained the E possible consideration of imposing conditions of bail within the meaning E of the Criminal Procedure Ordinance in order to determine whether the F F defendant would not commit any national security offence if bail was G granted (paras. 55-63). It explained that there was no so-called onus of G proof in a bail application even under the common law (i.e. even in the H H absence of any influence from the HKNSL) (paras. 64-69). It explained I that some foreign countries also placed the burden of proof for obtaining I bail on the defendant rather than on the prosecution but that was not J J unconstitutional (paragraph 69). K K 344. In respect of the statutory provision for trial without a jury, in L L Northern Ireland, under the Justice and Security (Northern Ireland) Act M 2007, the Director of Public Prosecutions may designate specific offences M for trial without a jury, as is the case in Hong Kong. In the UK, under N N section 44 of the Criminal Justice Act 2003, the prosecution may apply to O the court for a trial without a jury. In Twomwy & Cameron v the United O Kingdom, Application nos. 67318/09 and 22226/12, the European Court of P P Human Rights ruled that the absence of a jury did not violate human rights Q law. Q R R 345. Insofar as the provisions of the HKNSL contain “etc.” and S “other”, had Au researched or sought legal advice, he would have S understood that the provisions must be interpreted in accordance with the T T principles of statutory interpretation in order to determine their meaning, U U V V  - 184 - A A B B which left no room for the law enforcement agencies to abuse their power. C C 346. In the entire complaint in A12 against the HKNSL, apart from D D allegations, there was no substantive justification; the least he could do was E to point out whether there were any unusual provisions in the HKNSL as E compared with the laws of other countries; he did not even do that. I find F F that he was unable to do so at all. G G 347. In A12, Au complained that the Department of Justice was not H H soft in hunting down and pursuing political opponents, and that he could I review the sentence, appeal again and again. However, all these procedures I are originally part of the laws of Hong Kong, and are not provisions under J J the HKNSL. K K 348. Au complained that the NPCSC could guard the tailgate of the L L legal proceedings. The function of the NPCSC is comparable to that of the M British Parliament, and it certainly has the power to interpret the law in M accordance with the Basic Law. The British Parliament can overturn court N N judgments by way of legislation. O O 349. In A12, Au even alleged that since the NPCSC could make P P clarification or interpretation of the law at any time, those judges who were Q aware of the current situation would understand the meaning of justice in Q the new era. This is an unadulterated act of contempt of court. All judges R R are to follow the Judicial Oath in discharging their duties. Article 5 of the S HKNSL provides that a judge shall not convict or sentence any person for S any offence not provided for by law. T T U U V V  - 185 - A A B B 350. I am of the view that, without any objective basis, A12 alleged C that the HKNSL had extended the Government’s power such that it no C longer had any boundary, that the HKNSL was being exploited by the D D Department of Justice to suppress political opponents, and that judges are E not handling, or would not be able to handle, cases in an independent and E impartial manner. Section 9(2) of the Crimes Ordinance does not apply. F F The article also ignores the need for the promulgation and implementation G of the HKNSL (see the 5.28 Decision 100), and the fact that similar laws and G related systems exist in Western democracies (e.g. in Northern Ireland, H H national security cases can be tried without a jury101). I I 351. In the light of the social unrest and unstable public sentiment J J at the time of the incident, I find that A12 caused potential detriment to K national security or public order and safety, with the intention of seriously K undermining the authority of the Central Authorities or the SAR L L Government and the administration of justice in Hong Kong. It had the M seditious intentions as defined in section 9(1)(a) and (c) of the Crimes M Ordinance, i.e. bringing into hatred against the Central Authorities or the N N Hong Kong Government and bringing into hatred against the O administration of justice. O P P (A13 blog post) Q Q 352. Article A13 was a blog article written by Law Kwun-chung, R R which criticised the trial arrangements in respect of the 35+ primary S election case involving 47 defendants: S 100 T See footnote 19 above T 101 Justice and Security (Northern Ireland) Act 2007 U U V V  - 186 - A A B B “The pro-democracy advocates left the West Kowloon Law Courts Building C C only at 2:30 am last night, and the last prison van only arrived at the reception centre at 6.30[am]. [I] guess they could only ‘have a quick wash of their faces’ D D before leaving at 8am to be escorted to the court for the hearing.” E E “Having been present at the hearing for more than ten hours, some of the F F defendants even collapsed from fatigue. The forty-seven of them had to set off again in a state of exhaustion.” G G H 353. The article went on to describe the prosecution of the 35+ H primary election as ridiculous and an abuse of power: I I J “What they are facing is the ‘offence of conspiracy to subvert state power’ J which alleges that they have taken part in a primary election for the K Legislative Council that was part of a plot to veto budgets and oppose the K government’s bills. Those rights conferred to council members by the Basic L L Law now constitute subversion.” M M “In the end, the election they had hoped to participate in did not take place. N None of them were able to achieve what they had hoped to achieve – to get N elected.” O O “Therefore, the Department of Justice is prosecuting a group of democrats P P who plainly have no prospect of becoming council members for acts of subversion which can only be performed by council members and which are Q Q allowed by the constitution (what the hell is this concept ...). The absurdity as R such is very close to accusing a blind person of peeking at state secrets.” R S “This trial has nothing to do with the law. It is just a naked abuse of power S by the CPC, in which the courtroom is used to demonstrate its mighty power T T of manipulating the situation single-handedly. ... With inherent advantage on U U V V  - 187 - A A B the part of the National Security Law Court, the stage is set to showcase a B state-level trial, the ending of which will be subject to manipulation.” C C “This can be regarded as a complete coverage of the entire opposition camp. D D It is also the CPC’s hope to ‘catch them all in one net’ ... ‘[ensure] no egg is E left intact under the toppled nest’ in the suppression.” E F 354. From the judgment of the 35+ primary election case 102, one F G can see that the enforcement actions and prosecution in that case were G reasonable and legitimate. I am of the view that article A13 criticised the H H prosecution brought by the Department of Justice as being ridiculous and I an abuse of power without any objective basis. It was in flagrant disregard I for the need to enforce the law. Thus, section 9(2) of the Crimes Ordinance J J does not apply. The article also omitted the fact that since the 35+ primary K election case involved a large number of defendants, the court had to K extend the sitting hours in order to deal with them as expeditious as L L possible. In fact, neither the prosecution nor the defence made any M application in relation to the court sitting time. M N N 355. In the light of the social unrest and unstable public sentiment O at the time of the incident, I find that A13 caused potential detriment to O national security or to the public order and safety, with intention to P P seriously undermine the authority of the Central Authorities or the SAR Q Government as well as the administration of justice in Hong Kong. It had Q the seditious intentions as stipulated in section 9(1)(a) and (c) of the Crimes R R Ordinance, namely bringing into hatred against the Central Authorities or S the Hong Kong Government, and hatred against the administration of S justice. T T 102 HKSAR v Ng Gordon Ching-hang & Ors [2024] HKCFI 1468 U U V V  - 188 - A A B B C (A14 blog post) C D D 356. Article A14 was a blog article written by Allan Au Ka-lun. E His article repeatedly criticised the HKNSL and also the provisions on E sedition in the Crimes Ordinance: F F “... your chanting of ‘end one-party dictatorship’ affords a golden opportunity G G to accuse you of sedition. It has been written in the outline and chanted H ritualistically for the past thirty years; yet at this point in time, it may become H subversion. Under the National Security Law, one will never be disappointed I by the amazing creativity and imagination.” I J J “... any speech deemed to be offensive will be regarded as seditious. The offensive speech is further equated with inciting violence, or even with K K inciting subversion against the state. Next, allegations are regarded as L evidence, the accused are imprisoned before the trial commences. Creating L the new era logic and taking things to the highest with great leap forward. M These are the autocratic rulers’ favourite tricks.’ M N N “Hong Kong’s promising upstarts ... from the colonial era’s armoury of law ... O retrieved the sharpened weapons. The Crimes Ordinance includes ‘seditious O intention’ ... and the SAR government is actively revitalising the provisions P to test (or train?) judges’ ability to flexibly utilise the treasure left behind by P the colonial [government] in the new era.” Q Q “In Hong Kong, the element of sedition works even better when combined R R with the national security law. A flag, a slogan [or] a few declarations are S sufficient to justify prosecution, detention, denial of bail, imprisonment S before trial or freezing of assets, and there is no need to disclose the reason; T as long as the Secretary for Security believes so that is enough. If it turns out T U U V V  - 189 - A A B that judges still have their autonomy, the slim chance of having justice done B would still come too late.” C C D 357. In A14, Au first gave his interpretation of freedom of speech. D He then proceeded to criticise the legislation and judgments in respect of E E the offence of sedition based on his own definition of freedom of speech. F F 358. In my opinion, A14 failed to provide any objective basis to G G support its attack on the relevant provisions of the HKNSL and the Crimes H Ordinance, which were alleged to be the legal weapons misused by the H regime to suppress freedom of speech. Thus, section 9(2) of the Crimes I I Ordinance does not apply. The article also alleged that judges were tested, J trained and without autonomy. It seriously undermined the legitimacy of J the administration of justice in Hong Kong. In the light of the social unrest K K and unstable public sentiment at the time of the incident, I find that A14 L caused potential detriment to national security or public order and safety, L with intention to seriously undermine the authority of the Central M M Authorities or the SAR Government and the administration of justice in N Hong Kong. It had the seditious intentions as stipulated in section 9(1)(a) N and (c) of the Crimes Ordinance, namely bringing into hatred against the O O Central Government or the Hong Kong Government, and hatred against the P administration of justice. P Q Q (A15 blog post) R R 359. Article A15 was a blog article written by Allan Au Ka-lun. S S The article criticised the enforcement actions and prosecution against the T five senior staff members of Apple Daily under the HKNSL: T U U V V  - 190 - A A B B “The National Security Police pointed sharpened swords at the journalists. C C Five senior editors and reporters of Apple Daily were arrested. Knowing full D well that they were in grave peril, they were still resolute in standing their D ground ...” E E “In Hong Kong today, horse racing and property speculations keep going. F F The prosperity conceals the fact that disasters strike across the city. Apple Daily ... given the hardest blow in the media sector, whilst the Department of G G Justice and the courts are the epicentre of the rule of law earthquake...” H H “Under the National Security Law, we are witnessing a disaster, a disaster of I human rights, a disaster of the rule of law ... the faces we see on TV news I every day are [the causes of] aesthetic disasters and logic disasters.” J J K 360. According to a report by Stand News on 19 June 2021 103 , K Chan Pui-man was arrested for the offence of “conspiracy to collusion with L L a foreign country or with external elements to endanger national security” M on 17 June and was subsequently released on bail. In other words, Chan M was not held in detention at the time when article A15 was published. N N O 361. One can see that in article A15, Au completely disregarded O the fact that Chan Pui-man along with other senior staff members of Apple P P Daily were arrested not because of their capacity as journalists. They were Q arrested because they were suspected of having committed the offence of Q endangering national security and colluding with a foreign country or with R R external elements. As far as Au was concerned, there was no way for him S to know what evidence the prosecution had, nor was he in a position to S know what an individual member of the senior management of Apple Daily T T 103 Exhibit D2(143) U U V V  - 191 - A A B B had done. However, it was a well-known fact that Lai Chee-ying, Jimmy, C the founder of Apple Daily, had maintained contacts with foreign C dignitaries. Whether these contacts constituted an offence is of course not D D necessary for me to decide. Nevertheless, it was impossible for Au to aver E that the arrests made by the police were totally groundless. In his article, E Au only described Chan and other Apple Daily staff members as reporters F who stayed at the “scene of the disaster”, a metaphor which was devoid of F G any factual basis. Its sole purpose was to discredit the enforcement actions. G The various disasters under the HKNSL alleged by Au was entirely H H unfounded. He had been saying that under the HKNSL, people were I imprisoned before their trials had commenced. However, in the case of I Chan Pui-man, even though he was arrested on 17 June, the National J J Security Department of the police still granted him bail. This showed that K whether a defendant would be detained depended on a number of factors K including the evidence obtained before and after the investigation. Au just L L disregarded these circumstances. According to him, under the HKNSL, as M soon as Chan was arrested, she would lose her liberty immediately. In fact, M it was only when Chan was formally charged that the prosecution applied N N to the court for his detention. O O 362. I am of the view that A15 launched attacks on the enforcement P P of the HKNSL in respect of individual cases, as well as on the Department Q of Justice and the courts, without providing any objective basis. Thus, Q section 9(2) of the Crimes Ordinance does not apply. In the light of the R R social unrest and unstable public sentiment at the time of the incident, I S find that A15 caused potential detriment to national security or to the public S order and safety, with the intention to seriously undermine the authority of T T the Central Authorities or the SAR Government and the administration of U U V V  - 192 - A A B B justice in Hong Kong. It had the seditious intentions as stipulated in section C 9(1)(a) and (c) of the Crimes Ordinance, namely bringing into hatred C against the Central Authorities or the Hong Kong Government, and hatred D D against the administration of justice. E E (A16 profile interview) F F G 363. Article A16 was a profile interview on two interviewees G claiming to be alumni of the Chinese University of Hong Kong (CUHK) H H who were anonymised as H and A. The article mentioned that the police I took enforcement actions at CUHK starting from 12 November 2019, I giving rise to the need to protect academic freedom against threats: J J “… The Chinese University of Hong Kong became the first university K K battleground since the commencement of the anti-extradition movement. The L police fired more than 2,000 rounds of tear gas into the campus.” L M “To the alumni, safeguarding the No. 2 Bridge, Chung Chi Gate and the four M stone pillars signified safeguarding the humanistic spirit of the campus. N N However, ever since the year 2021, freedom of access, academic freedom and O freedom of speech on the campus have long been taken away altogether at O the same time when the graffiti, vertical banners and posters were removed.” P P “… the moment when the volleys of tear gas were launched into the campus, Q Q H (a pseudonym), who graduated from CUHK with a degree in Philosophy, decided to rush back. ... H was a teacher. He, in a shirt and trousers and with R R a briefcase, set off from Sha Tin town centre to the campus after school with S a friend to render support although they did not know what they could do. …” S T T U U V V  - 193 - A A B B 364. The article also mentioned that the students and alumni C safeguarding CUHK had received wide support from local residents: C D “A lot of aged kaifongs helped deliver the supplies. They would not go out to D Mongkok or Hong Kong Island to fight. However, it seemed that the students E E were their bottom line, so everyone had to go up there to ‘save the students’. F It turned out that those who were not alumni also wanted to safeguard F CUHK.” G G 365. The article went on to describe the police actions: H H I “... The riot police had invaded the campus from No. 2 Bridge while the I students, who were hiding on the hillside using trees and bushes as a cover- J up, kept throwing miscellaneous objects to fight back.” J K K “The Sir Philip Haddon-Cave Sports Field behind A was on fire. Rounds of tear gas landed on the track like missiles with thick smoke rising into the air. L L Students on the field kept running away from the smoke amid the foul smell M of burning plastic as if they were acting in the ‘great escape’ part of a disaster M movie.” N N “Even through the gas mask, A could still distinctly smell that odour, could O O clearly see the police officers in front firing their guns, and could clearly hear one of them say, ‘Burn it all.’” P P Q 366. On 11 November 2019, the protesters threw miscellaneous Q objects from No. 2 Bridge of CUHK onto the highway and railway tracks R R underneath the bridge. They were reckless as to whether the motor vehicles S and trains passing by would be damaged or destroyed, or whether the S personal safety of members of the public would be endangered. They T T breached the peace with a view to paralysing the major trunk roads, thereby U U V V  - 194 - A A B B forcing the government into responding to their demands. This is an C undisputed fact. They started this kind of illegal act on 11 November 2019, C which was continued on 12 November. These acts, together with the so- D called “dawn campaign” and “daybreak campaign”, i.e. operations in D E which protesters in other districts blocked the major roads, aimed to call E for the “three suspensions”, namely no work, no classes and no businesses, F F as a means to force the government to compromise. Undoubtedly, the G police actions were not targeted at CUHK or its teachers and students but G at the protesters at No. 2 Bridge who were causing danger to the public. H H This fact could not be clearer at the time when A16 was published two I years later. I J J 367. It was mentioned in A16 that the two CUHK alumni H and A K had returned to the campus on 12 November 2019 for their respective K reasons. On that day, H was already a teacher and A a journalist by L L profession. A claimed to have witnessed riot police officers storming the M CUHK campus from No. 2 Bridge on 12 November, and students hiding M themselves on the hillside, using trees and bushes as a cover-up and N N throwing miscellaneous objects to fight back. The first clash between the O police and the protesters started at around 3pm on that day. During the time, O the riot police were standing guard at No. 2 Bridge, while the protesters P P had formed a phalanx beside Sir Philip Haddon-Cave Sports Field / the Q tennis courts. A vast multitude of protesters hid behind large refuse Q collection vehicles and water barriers. They pushed towards the police R R along Campus Circuit East, which caused the latter to start firing tear gas. S The incident was filmed by Cable TV News 104. The footage showed that S 104 T Exhibit D2(327A) T 105 See HK01 Report - Exhibit(D2(332)) U U V V  - 195 - A A B B shortly after the first round of tear gas was fired, something was thrown at C the riot police as could be seen on the left side of the screen. These objects C came from the hillside opposite No. 2 Bridge, that is, the miscellaneous D D objects thrown by the students as described by A. However, the situation E lasted for a very short time before coming to a stop. In the meantime, there E was a confrontation between the police officers and the protesters who F F were at Campus Circuit East which lasted for about 15 minutes. Following G that, the riot police moved from their location at No. 2 Bridge into Campus G Circuit East to give chase and arrest the protesters. From this, one can see H H that A did not give a truthful account as to what had happened at that time. I She did not mention at all that it was the protesters at Campus Circuit East I who had first charged against the police cordon line, and that it was only J J after a standoff of about 15 minutes between the two sides that the police K left their cordon line to give chase and make arrests. K L L 368. According to the article, A recalled that the riot police had M subsequently gone to the pavement beside the tennis courts, holding their M guns and aiming at the yellow helmets (i.e. the protesters) from a distance. N N The Cable TV news footage showed that the riot police were beside Sir O Philip Haddon-Cave Sports Field at that time. A went on to state that Sir O Philip Haddon-Cave Sports Field was on fire, that rounds of tear gas landed P P on the track like missiles, that thick smoke was rising into the air, and that Q students on the field kept running away from the smoke amid the foul smell Q of burning plastic as if they were acting in the “great escape” part of a R R disaster movie. It could be seen from the news footage that the police S officers did fire tear gas into the sports field where there were a large S number of protesters who were wearing helmets and gas masks and filters. T T Nothing like the great escape as described by A was seen. As reported by U U V V  - 196 - A A B B Cable TV News, some vehicles were set ablaze on the road next to Sir C Philip Haddon-Cave Sports Field and that was why the police could not go C forward. I believe this was the very reason the police officers fired tear gas D D into the sports field. A did not mention this fact. E E 369. A also said, even with the gas mask on, she could still F F distinctly smell that odour and clearly see the police officers in front firing G their guns. She could also clearly hear one of them say, “Burn it all.” These G few words dealt a last heavy blow to A who could no longer hold back her H tears. It was the first time that she had cried in her career; she said. “It never H I occurred to me that ‘Sir Philip Haddon-Cave Sports Field would be burnt’. I During my four years at CUHK, I had been going to the sports field for PE J J (physical education) lessons and was always there as early as 8:30 am. It K was really sad to see fire break out at an iconic place on the campus where K we used to leave our footprints during our four years at CUHK.” From the L L whole profile interview, it seemed that after Sir Philip Haddon-Cave Sports M Field was set on fire, A heard a police officer say, “Burn it all.” However, M from the video of Cable TV News, Sir Philip Haddon-Cave Sports Field N N had not yet been set on fire when the police officer uttered those words. O Furthermore, to be exact, what the police officer said was, “Burn it all. O Kerosene is all over the ground.” Obviously, the police officer saw that the P P protesters at the sports field had splashed kerosene onto the ground and Q thus jeered at them and said, “Burn it all.” It was not a suggestion that the Q police should burn down Sir Philip Haddon-Cave Sports Field. Cable TV’s R R footage then captured a high jump mat in the sports field being on fire S producing dense smoke. Actually, the mat was placed in a corner of the S sports field and the fire did not seem to have affected the people there. In T T addition, according to the subsequent news reports, it was the students who U U V V  - 197 - A A B had set the mat aflame. When the police officer said “burn it all”, the mat B C was not on fire yet. It was not the police officer who had burned the mat, C and the sports field remained intact and undamaged. It was impossible that D A would break down emotionally upon hearing the police officer say “burn D E it all”. It could not be true. E F F 370. A then said that a glass bottle had burst in front of her. Having G taken two steps forward, she found that the toe caps of her shoes were G completely damaged and felt that there was a little tingling in her toes. She H H then realised that she had been injured by a corrosive fluid. She was I persuaded by other fellow reporters to go to hospital for treatment. She had I to stop her work suddenly. On the ambulance, she thought to herself: how J J is CUHK now? She wanted very much to stay on until the last minute. “My K job was not to protect this place but to cover the news,” she said. “As I K have planted my roots in CUHK, I naturally have a special feeling for it L L and was eager to return there at these moments as a witness.” According to M what A said, the glass bottles were probably thrown by the protesters M because it was impossible that the riot police next to her would bring along N N glass bottles containing corrosive liquids with them. It appeared that she O was blaming the police officers for putting her work to a halt. O P P 371. Throughout the whole article, A’s narrative was the evidence Q in relation to the use of force by police officers and their entry into the Q CUHK campus. According to other news reports, the riot police then R R returned to No. 2 Bridge and stationed there. There was no evidence to S show that police officers pushed further into any part of the CUHK campus. S T T U U V V  - 198 - A A B B 372. As a matter of fact, No. 2 Bridge of CUHK stands on C government land. CUHK has been granted a non-exclusive right of way C 105 and is responsible for its repair and maintenance . Therefore, the police D D officers did not enter any part of the CUHK campus in stationing at No. 2 E Bridge. E F F 373. Regarding H, he was a teacher and claimed that he went to G CUHK with his friend at dusk to safeguard the campus after finishing his G work at school on 12 November. He said that he actually wanted to go back H H to the university as soon as he had learnt that the first tear gas round had I been fired on that day. He said he set off from Sha Tin town centre with I his friend. At that time, he was still wearing a shirt and leather shoes and J J carrying a briefcase. Because of the severe traffic congestion, he could only K walk and it took him around two hours to arrive. According to his K description, it was already 11:00 pm when he arrived at Chung Chi Gate of L L CUHK. His account focused on the people he had met and what he had M seen on the way. He was so touched because not only CUHK alumni but M also other people, especially the kaifongs in Sha Tin, all wanted to protect N N CUHK. O O 374. I doubt the truthfulness of H’s narrative. To cite an example, P P he stated that he was wearing a shirt and trousers and carrying a briefcase, Q and walked to CUHK after teaching at school. On the way, he met a lady Q who was pulling a grocery cart. She thrust money for taxi fare at him and R R his friend. He himself was a teacher and was still wearing his work clothes S and carrying his briefcase. Would any lady think that he was in need of S money to take a taxi? Apart from that, according to the author, H hurried T T back to CUHK by setting off at dusk and walked all the way from Shatin U U V V  - 199 - A A B B Centre to CUHK. From my estimation, it probably took about two hours C because there were just two stations in-between from Shatin Centre to the C University Station by train. The distance should not be too far. Had H D D arrived at CUHK at 11:00 pm, he probably would have set off at about 9:00 E pm, which did not tally with setting off “at dusk” as written in the article. E What H said was intended to provoke readers’ emotions by making them F F believe that there was a need to protect CUHK that night. G G 375. From Cable’s footage, one can see that there was another H H large-scale and prolonged confrontation between the police and the I protesters at No. 2 Bridge of CUHK and in its vicinity that night. Later, the I police left and the protesters occupied No. 2 Bridge again. The footages J J and the news reports showed that the protesters then threw petrol bombs K and other miscellaneous objects from No. 2 Bridge onto the highway and K railway tracks underneath the bridge. This was the reason why they L L charged against the police cordon line. The so-called protecting CUHK was M absolutely a fake notion. This CUHK incident only ended on 15 November. M There was no evidence showing the police had interfered with CUHK’s N N institutional autonomy and academic freedom during or at any stage of this O period. O P P 376. The article continued to state that H and A had returned to Q CUHK two years later on the day of a graduation ceremony but there was Q no mention of the correct date. Both H and A felt that CUHK was no longer R R the same as before on their revisiting the campus. In brief, H said he used S to believe that the university was a pure land where no intrusion by the S regime was allowed, and that no matter what adversities were outside the T T university, the professors and the administration of CUHK would still U U V V  - 200 - A A B B uphold the principles and display the spirit of scholars. H expressed that C when the security guards requested him to complete the identity C registration procedure before entering campus, his dream of a pure land for D D academics was instantly shattered because a university is a symbol of E freedom and openness. However, his remark was a bit exaggerated. After E the 2019 anti-ELAB movement, as various universities were involved in F F the anti-ELAB movement and protests, the participants of which G comprised both students and outsiders, a number of universities including G CUHK implemented identity registration procedures starting from the end H H of 2019 for the purpose of protecting the university. It is beyond doubt that I H genuinely cares about CUHK; otherwise he would not have returned to I campus on 12 November two years earlier. In the circumstances, it was J J impossible that he was unaware of the visitor’s registration requirement K which had already been imposed by the university. How could such a K simple registration make the free and open academic environment of the L L university disappear? Another point is that, when the incident at CUHK M took place in 2019, all the vertical banners, slogans, graffiti and writing on M the campus were removed. H said as long as the Berlin Wall had not fallen, N N no one would knock it down. However, as shown in the footage of Stand O News [Exhibit PA1(16)(c)] released together with the article, these vertical O banners, graffiti and writing in CUHK in November 2019 included P P contents such as “Five demands, not one less”, “Hongkongers resist”, Q “Liberate Hong Kong, revolution of our times”, “Voice out and die, don’t Q be silenced and live”, “True universal suffrage”, “CU FIGHT BACK”, R R “V[iolent] U resists”, “STAND WITH HONG KONG”, “Conscience”, S “Anti-communist College”, “Liberation, go” and “Liberate ART S Revolution of our times”. There was also a pattern of “Guy Fawkes Mask”, T T too. The footage showed that all of these had been removed by November U U V V  - 201 - A A B B 2021. The university had no reason to retain these protest slogans on C campus for so long, bearing in mind that most of them indeed carried the C implication of Hong Kong independence. It was not that the university was D D afraid of the regime, but rather that the university must indicate very clearly E that it neither advocated nor supported the independence of Hong Kong. E The university was the victim in the sense that it had to remove such F F detrimental items and reinstate the campus, which could hardly be regarded G as suppressing freedom of speech or not tolerating students’ expression of G their opinions. H H I 377. H said CUHK had become a secondary school because its I people had changed: students no longer had the desire to pursue more J J knowledge, while professors no longer had the freedom to pass on the spirit K of humanism. “There are places for you to study. There are places for you K to have fun (extracurricular activities). That’s all and nothing more. They L L won’t take the initiative to conduct research or discover [new] knowledge, M but just obey orders and follow the books.” As far as professors were M concerned, they had also changed, too. They had been deprived of the N N freedom of passing on the spirit of humanism as the university had already O been intruded by the regime. O P P 378. What H and A had seen and heard at CUHK in November Q 2021 could hardly support or show that the measures taken by the CUHK Q administration had jeopardised freedom of access and freedom of speech R R on campus, and had stopped students from speaking out. Under such S circumstances, the issue of whether the regime had intruded into the S campus as alleged by H was totally irrelevant. As the university did not T T unduly interfere with the various freedoms on campus, it followed that such U U V V  - 202 - A A B B allegation that the regime had intruded into the campus and had interfered C with academic freedom was unfounded. H, without providing any C evidence, alleged that professors no longer had the freedom to pass on the D D spirit of humanism. He was just making unfounded assumptions or E conjectures. Article A16 did not record that when he had returned to CUHK E in November 2021, H had ever met with or talked to a professor to ascertain F F whether the latter had lost the freedom of passing on the spirit of G humanism. G H H 379. I am of the view that A16 did not provide any objective basis I in alleging that the academic freedom of CUHK was threatened and needed I to be protected. It criticised police enforcement actions with untrue facts J J and glorified the rioters’ acts. Thus, section 9(2) of the Crimes Ordinance K does not apply. The article omitted the fact that the police had to deal with K the riot occurring at CUHK at the time. Instead, it painted a picture that the L L police were suppressing the students. In addition, when Stand News M published article A16, a video footage was embedded to compare the M scenes of the campus during the riot with how the campus looked two years N N later. The footage depicted a number of scenes of the riot at the time, and O slogans such as “Liberate Hong Kong, revolution of our times” could be O seen. In my opinion, Stand News, by means of article A16, intended to re- P P display the protest slogans and to rekindle the violent protests which had Q already cooled down, thereby bringing the public into hatred against the Q SAR Government and the police. R R S 380. In the light of the social unrest and unstable public sentiment S at the time of the incident, I find that article A16 caused potential detriment T T to national security or to the public order and safety. Its intention was to U U V V  - 203 - A A B B seriously undermine the authority of the Central Authorities or the SAR C Government and the administration of justice in Hong Kong. It had the C seditious intentions as stipulated in section 9(1)(a) and (c) of the Crimes D D Ordinance, namely bringing into hatred against the Central Authorities or E the Hong Kong Government, and hatred against the administration of E justice. F F G (A17 news report) G H H 381. A17 was a news report regarding Chow Hang-tung being I given the “Distinguished Person for Advancing Democracy in China I Award”. The article quoted Chow’s acceptance speech which contained J J the implicit comment that the law enforcement arising from the 2019 bill K amendment as well as the enactment of the National Security Law of Hong K Kong were acts by the CPC in the totalitarian suppression of a democratic L L social system and the law, and to undermine the freedom and openness of M the society. After reading the article carefully, I consider that the article M was of the nature of a news report and hence find that there was insufficient N N evidence to prove that article A17 had a seditious intention. O O (Comments on social media platforms) P P Q 382. It is the prosecution’s view that the readers’ comments on the Q social media platforms of Stand News in relation to the 17 articles reflected R R the seditious effect of the articles as well as their seditious intentions. S S 383. I will not infer whether an article has seditious intentions from T T the comments left by readers. Readers’ comments were commonly seen on U U V V  - 204 - A A B B the news reports or articles published by Stand News after they had been C published on its website or social media platforms. When Stand News C allowed these comments to be displayed on its website or social media D D platforms, so that readers having accessed the website or social media E platforms could read them, I believe that Stand News could be regarded as E having “published” these comments. However, the seditious publications F F at issue in this case are the articles published by Stand News, including G articles A1 to A17, which are presented as evidence of overt acts, but not G the comments made upon these articles. The comments, it is believed, were H H not made by any of the defendants, and there is no evidence that they I approved of the contents of the comments, nor was there any law requiring I them to remove any comments they did not approve of. Moreover, it is up J J to the court, in the performance of its jury function, to determine whether K the articles at issue are written with seditious intentions. The writers of the K comments are not qualified as expert witnesses, and their interpretations L L and/or reactions to the articles are not admissible as evidence of the facts. M M G6. Mens rea of the defendants N N O 384. By now, 11 out of the 17 articles, namely A1, A4, A5, A7, O A10, A11, A12, A13, A14, A15, and A16, have been ruled to have P P seditious intentions. I find them to be seditious publications. I have already Q ruled that sedition is a specific intent crime, but it is not necessary for me Q to rule in this trial whether the authors of these articles had a seditious R R intention because they are not the defendants in this case. The fact that the S articles were published on the Stand News website and social media S accounts is not in dispute, and D2 admits that he, as Chief Editor of Stand T T News, had approved the publication of all the articles except A16. At the U U V V  - 205 - A A B B time when A16 was published, D3 was the acting Chief Editor of Stand C News, and the police had written to D3 (because of his capacity as Chief C Editor), complaining about A16’s content, but A16 was published D D nonetheless. Therefore, the only reasonable and irresistible inference is that E D3 approved the publication of A16 in Stand News. What follows is E whether all or some of the three defendants knew that the articles were F F seditious and whether each defendant acted with mens rea (had the intent G of sedition or was reckless as to the consequences of sedition). G H H 385. According to the evidence of D2, D2 and D3 were only I fulfilling the responsibility of the media to record the voices of the times I and the views or the true feelings of different people. D2 testified that Stand J J News was not a political platform, nor did it advocate a particular political K agenda, but only provided an open platform for different voices, including K the views of dissidents, to be expressed. D2 opined that freedom of speech L L was beneficial to the country, and was a value that must be embraced by a M democratic society. He stated that Stand News would also exercise the M fourth power to monitor the use of public power. The defence points out N N that apart from dissenting voices, Stand News had also covered the voices O and criticisms by the Government. The defence contended that if Stand O News had a hidden agenda, it would not have covered the Government’s P P voice. Q Q 386. The defence points out that the prosecution stated in R R paragraph 661 of their written closing submission that they “cannot dispute S that [D2’s] original and general aspiration is to achieve quality journalism, S which might be one of the purposes for which he operated Stand News”. T T The defence argued that since achieving quality journalism was one of U U V V  - 206 - A A B B D2’s intentions, D2 having seditious intention could not be the only C reasonable and irresistible inference. C D D 387. I have considered the prosecution’s submission carefully. In E paragraph 661, immediately after the sentence quoted by the defence, the E prosecution went on, “However, this does not mean that he did not have F F seditious intentions at the time he published the articles.” The prosecution G clearly emphasised that the key issue was D2’s intention at the time of the G alleged offences, including the time of the publication of each of the H H questioned articles, but not at any other time. The prosecution by no means I admitted the presence of doubt in their evidence. Of course, the burden of I proof is on the prosecution. J J K 388. The defence also stressed that the court must consider all the K circumstantial evidence, especially the cumulative weight of all the L L circumstantial evidence. The defence submitted that the practice of other M media outlets in reporting news and publishing articles was very important M circumstantial evidence, because when Stand News acted in the same way N N as other media outlets, it showed that Stand News was only engaging in O real journalism. The defence argued using the primary election of the O democratic parties as an example; apart from Stand News, other media P P outlets also interviewed the candidates and published interviews with them. Q At that time, the Government did not say the media were not allowed to Q interview these candidates, and that even if the remarks of these candidates R R were detrimental to the public interest, the media still had the responsibility S to cover them. I agree with this submission, but on the other hand, even if S different media outlets cover the same event or issue, different reporting T T U U V V  - 207 - A A B B techniques, approaches or contents, and different publication intentions C may lead to different consequences. C D D 389. The defence also argued that other articles published in Stand E News were also very important circumstantial evidence. As submitted by E the defence, Stand News had been in operation for seven years and had F F published more than 100,000 articles, more than 20,000 at the time of the G charge alone, but only 17 articles were questioned, and the prosecution G could not allege the other articles, which accounted for more than 99.9% H H of the total number, were seditious publications. On this basis, it was I submitted, a more natural and reasonable inference was that D2 and D3 did I not have any seditious intention or criminal agreement all along. They had J J simply followed the philosophy of the Launch Statement to achieve quality K journalism. They did not deliberately publish articles to bring readers into K hatred against the Government, the Central Authorities or the judicial L L system, but only to disseminate information and pluralistic views in the M public interest to the public. A1 to A17 formed only a tiny part of the M pluralistic views. I do not think this submission is of much help to the N N defence. O O 390. Firstly, the prosecution has never admitted that, apart from P P articles A1 to A17, other articles published in Stand News were not Q seditious publications. At the commencement of the trial, the prosecution Q believed that the police had only downloaded 30 of the articles previously R R published in Stand News in their investigation, which led the prosecution S to explain to the defence in their opening submission that they would only S rely on 17 of those articles to prove the overt act of the alleged conspiracy. T T It was only during PW2’s testimony that the prosecution learned that the U U V V  - 208 - A A B B police had downloaded other articles in the course of their investigation, C and the defence sought further disclosure. After enquiries, it was C discovered that the total number of articles retained by the police was 587, D D and the prosecution immediately disclosed the remaining articles to the E defence, but made it clear that they were not going to rely on the newly E disclosed articles as evidence to prove the prosecution case, so as to avoid F F broadening the basis of prosecution which would risk unfairness to the G defendant; nonetheless the prosecution reserved the right to use these G articles as rebuttal evidence. It can be seen that it was only under these H H special circumstances that the prosecution limited the number of articles I substantiating the prosecution case to 17 without trying to include other I articles, but such a prosecutorial approach cannot by any stretch be taken J J to mean that articles other than these 17 were not seditious publications. K K 391. Secondly, if all the articles published by Stand News were L L products of good faith and in line with media practices and ethics, the M defence would have no reason to object to the prosecution’s retention of M the newly disclosed articles (that is, all the 587 articles) as rebuttal evidence N N because, according to the defence, they were plainly not seditious O publications. Not only would they not contradict the defence case or O evidence, they could even further prove that Stand News had all along been P P publishing non-seditious articles, thereby enhancing the credibility of the Q evidence of the defence. But the defence did not rely on these articles in Q their closing submission. R R S 392. Thirdly, I agree that if a defendant’s past behaviour S constitutes a pattern, this is one piece of evidence – indeed, important T T evidence – from which an inference can be drawn as to his intention, but U U V V  - 209 - A A B B the pattern must be established by evidence. There is no evidence to C establish that the other 99.9 % of the articles in Stand News did not contain C seditious articles. I am not saying that all or some of them are seditious, D D but what I need to do is to consider the evidence as a whole to determine E one by one whether each of the articles in question, and whether each of E the defendants, had seditious intentions. F F G 393. In any event, as a matter of legal principle, a person who G publishes a seditious publication with seditious intention is guilty of an H H offence, even if this is the first time he publishes a seditious article and has I never done so before. Therefore, the absence of sedition in other articles is I only one of the factors to be considered. J J K 394. During D2’s testimony, he adduced as evidence an K experimental publication by the Department of Journalism of the School of L L Communication of the Hong Kong Baptist University named “The New M Journalist”, Issue No. 05, February 2015/16 105 , whose cover title reads M “Mainland funds buy up Hong Kong media companies, Hong Kong’s N N freedom of the press suffers setback” to prove that there were different O voices in the media in Hong Kong, and that Mainland-funded media had O even more voices. P P Q 395. The heading of one of the paragraphs in this publication reads: Q “Media bosses dictate media’s political orientation, interfering with R R editorial independence”; and the content reads: “In a survey conducted by S this newspaper in December last year (2015) on the takeover of Hong S Kong’s media companies by Mainland funds, it was found that 90% of the T T 105 Exhibit D2 (209) U U V V  - 210 - A A B B 105 respondents had indicated that they would pay attention to the political C affiliation of the funders of media organisations; and more than 80% of the C respondents had agreed or strongly agreed that the political stance of the D D shareholders of media companies would affect the reporting approach (e.g. E editorials, commentaries, readers’ submissions, etc.) of their news E organisations, and the majority of the respondents had agreed that owners F of media companies played a crucial role in news reporting.” F G G 396. That publication went on in the following paragraph: “Bosses H H are very influential in media organisations, according to Leung Tin-wai, I Head of the Department of Journalism and Communication at the Hong I Kong Shue Yan University. In the day-to-day operation of media J J organisations, bosses can express or determine the political stance of a K media outlet through editorials, or influence the editorial work of the news K organisations through appointments and changes in personnel: ‘Bosses L L tend to hire senior editorial staff who share a similar stance to their own. M Such personnel appointment is hardly anything new in the journalism M industry’.” N N O 397. This publication was released in February 2016, not long O before the establishment of Stand News, and the views mentioned above P P are consistent with my life experience. D2 testified that the Chief Editor of Q a media company could decide on its direction, the line it took and the Q yardstick of the contents, etc. but D2 also agreed that the final decision R R could be said to rest with the employer, who could dismiss the Chief Editor. S Therefore, there is no doubt that in considering whether the three S defendants had seditious intentions, the factors which I, as a juror, may T T take into account can include the source of funding of Stand News, the U U V V  - 211 - A A B B political background of the shareholders, editorials, published articles, C publications, personnel appointments, and so on. C D D (Trust Arrangements and Launch Statement106) E E 398. The starting point for the establishment of Stand News was F F naturally its Launch Statement, a document which is also the focus of the G defence case. Ms Eu SC points out that the three defendants have been G charged with conspiracy, and conspiracy necessarily involves two or more H H persons agreeing to commit certain criminal acts. Therefore, the central I issues in the case are when the alleged agreement was reached, who agreed I to it, what they agreed to do, when they agreed to do it, who agreed to do J J it, and so on. Ms Eu SC said that she could say at the outset that the Launch K Statement described the agreement to set up and operate Stand News. She K emphasised that according to the contents of the Launch Statement, the L L purpose of the agreement was lawful, the intended conduct was lawful, and M the core values embraced by Stand News were universal values, and even M more so values constitutionally protected by the Basic Law and the N N HKNSL. In addition, according to the evidence of D2, throughout the O course of its operation, Stand News had been run in line with the Launch O Statement. I agree that this Launch Statement is key evidence because it P P can show the agreement between D2, Tsoi and Yu at the time of the Q founding of Stand News, as well as the operational direction of Stand Q News. R R S 399. In view of the importance of the Launch Statement, I set out S in full its contents below. It can be divided into four parts, namely, T T 106 Exhibit PB1 U U V V  - 212 - A A B B Introduction and Charter, List of Directors, Frequently Asked Questions, C and Launch Statement. C D 400. Under the heading “Introduction and Charter” is the following D E description: E F “Stand News is a non-profit making news website established in December 2014. F Its long-term development, as far as its business model is concerned, is supported G G by commercial advertisements and public donation. Based in Hong Kong, our H home turf, Stand News takes the line of editorial independence and autonomy, and H is dedicated to upholding Hong Kong’s core values of democracy, human rights, I freedom, rule of law and justice.” I J J 401. There then follows the subheading “The Charter”, under K which there are three icons, each with a line of text that reads: K L L “Uphold editorial independence and autonomy, unswayed by the influence of consortia, funders, the authorities as political parties.” M M N “Operate on a non-profit-making basis. Any future operating surplus will be N retained for use in the media undertaking instead of being distributed.” O O “Unconditional donation from the public is acceptable and all funds can only be P P used in the media undertaking.” Q Q 402. In the List of Directors, it shows the photographs of Tsoi and R D2, and describes Tsoi as “Corporate Manager, founder of Stand News”, R S and D2 as “Journalist, Chief Editor of Stand News”. S T T U U V V  - 213 - A A B 403. The next section is “Frequently Asked Questions”. There are B C 6 questions listed on the page, each question on a separate line, and at the C right end of the line is a “v” symbol. Clicking on this symbol with a D D computer mouse will reveal the answer to that question, and another click E will hide the answer. The six questions and answers are set out in the E following order on the page. F F “What’s the difference between House News and Stand News? G G House News, which closed in July 2014, is a private company owned by H individual shareholders; whereas in Stand News there are no longer any H individuals with a substantial interest. The three founders of Stand News, I Chung Pui-kuen, Yu Ka-fai and Tsoi Tung-ho, have given up the financial I interests in their equity and their rights to dispose of the shares through a J J trust arrangement, which will hold the equity of Stand News on a long - term basis and the equity is not transferrable.” K K L “Does Stand News accept commercial advertisement orders? L Stand News accepts advertisement orders from commercial and other M organisations to increase revenue. For advertising enquiries, please contact M [email protected].” N N O “I subscribe to the philosophy of Stand News; can I make a donation to it? O We have stopped accepting public donation for the time being (please refer P to the declaration: https://xxxx.com for details). The Stand News team will P seek support from the people of Hong Kong again if necessary in the fu ture, Q Q and we hope to receive support again when the time comes. For enquiries about the original donation, please contact xxxx.com.” R R S “How does Stand News ensure that donations are used appropriately? S The Board of Directors of Stand News is responsible for overseeing that T all donations received by Stand News are used for the development of the T independent media undertaking.” U U V V  - 214 - A A B B “How was Stand News financed in its early days? C C Initial operating funds were donated by some Stand News board members and others who share Stand News’ philosophy. All donations were D D unconditional.” E E “Will there be a mobile app for Stand News? F F Stand News has launched mobile apps on iOS and Android platforms, which will be updated as soon as possible.” G G H 404. The last part is the Launch Statement, which reads as follows. H I I “With the demise of House News comes the birth of Stand News. Born in J Hong Kong in 2014, we have a kind of responsibility. J K We are responsible for the abnormal death of House News. We overlooked K the challenges of running an independent media outlet in Hong Kong L L during this era, and underestimated the pressure from the suppression on autonomous media. M M N We refuse to relent; we’re not giving up. We refuse to be knocked down N just like that, and we’re not giving up on our dream of building an O autonomous media outlet. Over the past few months, we have pulled O ourselves together and have gathered our thoughts about how to rise again. P P Stand News is the answer. Q Q The major difference between House News and Stand News is that no one R has a substantial interest in the company anymore. In order to ensure Stand R News is free from any interference and its development is sustainable, the S three founders of Stand News have given up the financial interests in their S equity and their rights to dispose of the shares through a trust arrangement, T T which will hold the equity of Stand News on a long term basis and the U U V V  - 215 - A A B founders cannot transfer the shares of the company. B C C A Charter is drawn up for Stand News, which stated: D D Stand News upholds editorial independence and autonomy, unswayed by E the influence of consortia, funders, the authorities or political parties. E F F Stand News operates on a non-profit-making basis. Any future operating surplus will be retained for use in the media undertaking instead of being G G distributed. H H Unconditional donations from the public are acceptable and all funds can I only be used in the media undertaking. I J J Stand News invites members of the community to the Board of Directors to oversee the fulfilment of the Charter. We hope that Stand News will be K K more resilient, more robust and more able to weather storms than House L News was. L M Stand News, like House News, is Hong Kong-oriented, and firmly believes M that Hongkongers are to determine our city’s future. Democracy, human N N rights, freedom, the rule of law, and justice are the core values of Hong Kong that we are committed to upholding. O O P By naming it Stand News, we are as fearless as ever in taking a stand, P without any disguise or evasion. Q Q We insist on reporting the truth and will not twist the facts because of R R stances. We believe in the importance of independence. In handling news we do not have hidden agendas and do not pander to the powerful or the S S rich. We strongly believe that the media’s role is to monitor and check T power, and we will continue to be the voice of the powerless, the T disadvantaged and the minority. U U V V  - 216 - A A B B We defend freedom of speech and promote diversity and inclusivity. Stand C C News allows different stances and viewpoints to clash. D D Hong Kong is the home turf of Hongkongers; defending the home turf is E our unyielding stance. E F F 405. As expressed in the Launch Statement, the purpose of D2, Yu G and Tsoi in founding Stand News was to succeed the then defunct online G media, House News. That was also echoed in D2’s evidence. Hence, in H H what circumstances House News was closed plainly had a direct impact on I the composition and the structure of Stand News. I J J 406. D2 testified that he had come to know Tsoi in the second half K of 2011 when he had obtained financial news work outsourced by Tsoi. K Around 9 months later in July 2012, Tsoi together with three other people L L founded House News which was held by a private company owned by Tsoi M and funded wholly by Tsoi. Tsoi hired D2 and Yu as Chief Editors of M House News and D3 as a reporter. D2 and Yu held no shares of House N N News, nor were they the directors. Suddenly on 26 July 2014, Tsoi O announced on Facebook the closure of House News 107. O P P 407. D2 went on to testify that Tsoi had closed down House News Q because he had felt under pressure and that his personal freedom was under Q threat. Later, Tsoi, Yu and D2 wanted to be back in the media business R R again. However, from the experience with House News, they believed that S if the company were to be wholly owned by Tsoi again, when he decided S T T 107 Exhibit P37(1) U U V V  - 217 - A A B B to end it due to any pressure or for any reason, the company would close C down. Thus, after discussion, they created a trust, thereby giving up the C financial interests in their equity and their rights to dispose of the shares. D D They surrendered their equity to the trust for long-term holding so that they E would be unable to transfer their shares in the company. They wanted the E public to know that it was futile to target any individual founder because F F each had no power to put this company to an end. Apart from that, D2 also G pointed out that readers had lost their faith due to the sudden closure of G House News. That was why they also wanted to spell it out to the readers H H that the company structure of Stand News was different from that of House I News. It would not be closed down just because of any individual being I threatened. They hoped that it would boost the readers’ confidence in Stand J J News. K K 408. D2 also described that company shares arrangements were L handled by a secretarial service company or an accounting company L specialising in company incorporation. It was Tsoi who had contacted this M M company the name of which D2 could not remember. D2 agreed that Stand N News was owned by D1 which was owned by Web Network. Web Network N was in turn held by Indepth Global. He and Tsoi and Yu, all three of them, O O jointly held one share of Indepth Global, i.e. each of them holding one third P of a share. According to D2, he had never received any dividend or any P interest nor was he required to pay for acquiring this one third of a share. Q Q R 409. With regard to the trust arrangement, D2 testified that he R believed that it was the same secretarial service company that had handled S S the trust arrangement and the incorporation of the two overseas companies. T To his understanding, a company had to be incorporated before the T financial interests of the equity and the rights to buy or sell the shares could U U V V  - 218 - A A B B be transferred to the trust. But his memory of it was not so vivid. D2 C maintained that he had once signed some documents for the trust C arrangement. As far as he could remember, though technically they still D D owned the equity, the financial interests of the equity and the rights to E dispose of such shares in the future had been transferred to the trust. Ms Eu E SC pointed out to D2 that the police search had revealed that there was no F F document showing this trust arrangement in the office of Stand News and G asked D2 if he knew why. D2 replied he could only reckon that the G documents were still kept by the secretarial service company or held by H H Tsoi but he was not certain about that. D2 explained, when Ms Eu SC asked I further, that he had not kept or locked away the trust documents himself, I but he remembered there was a set of trust documents in the office. D2 J J added, “But as I am unable to find it, I won’t speculate further. I don’t K know, actually.” K L L 410. D2 agreed, when cross-examined by the prosecution, that Tsoi M was a businessman who had once been involved in political activities. In M 2013, Benny Tai Yiu-ting had gathered 10 people to help promote the N N launch of “Occupy Central”. They were labelled the “Ten Martyrs of O Occupy Central” and Tsoi was one of them. However, Tsoi came under O fire for not turning up when “Occupy Central” was underway in September P P 2014. D2 conceded that one of the selling points of House News was Q political news. So when Stand News succeeded House News, they would Q continue with political news. R R 411. D2 agreed that Stand News was funded by Tsoi. He had been S S an employee while working at House News but he had become a director T at Stand News. According to him, though the work at House News and at T U U V V  - 219 - A A B B Stand News were the same, his becoming a director meant he would share C in the risk and to some extent provide check and balance. In case decisions C had to be made under extreme circumstances (e.g. whether or not to close D D down the company), the three of them could make the decision together. E When cross-examined by the prosecution, D2 conceded that through the E trust arrangement, they had handed over to the trustee the financial interests F F of their equity and the control over the company for the purpose of keeping G the company running even if the three of them were taken away. G H H 412. When the prosecution cross-examined D2 about why I documents in relation to the trust were not found in the office of Stand I News, D2 indicated he was not going to answer this question. He said he J J had a strong impression that at the time of the execution of the documents, K someone had explained to him that in case the company was wound up, K they would not get any benefits because they had already given up their L L financial interests. Hence they had requested the trustee to donate the items M of the company to charity or non-profit making organisations. However, M no specific beneficiary was named at the time; it was left to the trustee to N N decide. O O 413. In their closing submission, the prosecution alleged that such P P a trust arrangement as described by D2 never existed. The defence stressed Q that D2’s evidence tallied with the Launch Statement, and that common Q sense dictated that there was no reason for Stand News to deceive readers. R R The defence was also of the view that whether or not such a trust ever S existed had no direct bearing on the issues in this case, that it was neither S here nor there. T T U U V V  - 220 - A A B B 414. In the course of considering whether the trust arrangement for C Stand News ever existed, I first thought about the reason behind the sudden C closure of House News. The relevant evidence is Tsoi’s post on his D D Facebook on 26 July 2014 108 . In this post, he gave his account for the E reason for the closure and announced the immediate closure of House E News. D2 did not deny in his evidence that this post had been uploaded by F F Tsoi. As D2 was the Chief Editor of House News back then, he must have G known that the post was indeed from Tsoi and that Tsoi had explained why G House News would be closed down. H H I 415. In his post, Tsoi referred to two reasons for closing down I House News. First, he felt fear. Second, he had misjudged. He said he felt J J fear because the atmosphere of political struggles back then was extremely K disturbing. He related that quite a few democrats were being stalked, K smeared and their past being raked up. He also felt under stress, though he L L did not claim to have had any personal experience in such matters. He also M expressed that being a businessman and travelling a lot to the Mainland for M business, he was always on edge when crossing the border. Nonetheless he N N added, “But am I just being over-paranoid?” In other words, he had never O been detained or picked on when crossing the border; otherwise he would O have spoken of such things happening instead of thinking aloud, doubting P P if he had been “over-paranoid”. It was apparent that Tsoi’s fear arose from Q his sensitivity, if not his imagination. Actually, he had experienced no real Q threats against his personal safety or freedom of movement. As to his R R misjudgement, Tsoi said he had misjudged the market. He said “last S month” (i.e. June 2014), the number of daily average unique visitors of S House News was 300,000, which was thought to be good. However, when T T 108 Exhibit P37(1) U U V V  - 221 - A A B B the social and the market atmosphere was abnormal, the advertisement C income of House News was disproportionate to its influence. He elaborated C that there had never been a month that break-even had been achieved since D D inception. And the biggest problem was that in the foreseeable future, the E social atmosphere in Hong Kong would only get more intense. He was E unable to see the light at the end of the tunnel from the business F F perspective. Tsoi also mentioned that someone had asked him whether G House News had experienced any advertisement being withdrawn. He G answered in the negative because “how can it be withdrawn when it has H never been placed?” He remarked, “Not only has the core value of Hong H I Kong been distorted, the market has also been distorted”. At the end of his I post, he concluded that his fear and misjudgement had stemmed from his J J “past belief that Hong Kong remained a normal place, and his K wholehearted thought of being a citizen who cared about Hong Kong and K a businessman who believed in the market.” But he was wrong, “It turned L L out to be a mistaken fantasy that I could be a normal citizen and M businessman in an abnormal society and market.” He then apologised to M his co-workers, family, bloggers and both domestic and overseas readers N N for the sudden closure of House News. In the end he said, “You all realise O at last that I am just an ordinary man. I have truly tried my best and this is O it as far as I can go.” P P Q 416. In his post, Tsoi never alleged that he was pressurised to end Q House News. And his alleged fear and concern did not arise from any R R actual incidents but his feelings. Apparently, it was his personal decision S as well as an autonomous business decision to close House News. It had S nothing to do with his personal safety or freedom. Or at the very least, T T business consideration was the most important factor. House News was in U U V V  - 222 - A A B B operation for about two years from its launch to its closure. According to C Tsoi, there was never a month when break-even was achieved for House C News. He was the only one who had funded the operation of House News, D D and undoubtedly, his accumulative loss till that moment must have been E quite considerable. Furthermore, according to his estimation, the social E atmosphere back then was getting more intense. He could not see the light F F at the end of the tunnel from the business perspective. Moreover, Tsoi G pointed out an important reason. When he was asked if any advertisement G had been withdrawn, he replied, “No, how can it be withdrawn when it has H never been placed?” In other words, House News did not earn any or H I enough income from advertisement. When a business was losing money I for as long as two years and there was no prospect, it was simply natural J J for one to cut one’s loss and leave by closing the business. Unless Tsoi was K a multi-billionaire not bothered by indefinite and unlimited loss of money, K ending House News was the only reasonable business decision. L L M 417. On the other hand, the undisputed and indisputable fact is that M on 8 December 2014, Tsoi had already become the director of two overseas N N companies, i.e. Web Network and Indepth Global. Indepth Global was the O only shareholder of Web Network at the time and Tsoi was the only O shareholder of Indepth Global. It was not until some time afterwards that P P D1 was set up in Hong Kong on 16 December 2014. D1’s only shareholder Q was Web Network. From these facts, the only reasonable and irresistible Q inference that can be drawn is that on or before 8 December 2014, Tsoi, R R Yu and D2 had already decided, by consensus, to operate an online media S and started to get Stand News off the ground. S T T U U V V  - 223 - A A B B 418. It is against the backdrop of these facts that comes the C apparent question: within a period as short as four and a half months C between 26 July 2014 and 8 December 2014, how did Tsoi overcome the D D two major negative factors leading to his closing down of House News, E and gain the desire and confidence to invest in an online media business E again? I believe that it was easy for Tsoi to resolve the fear issue, which F only required him to stop being “paranoid”. But how did he solve the F G problem of long-term and continuous loss of money? Tsoi had stated that G no advertisement had been withdrawn from House News as none had ever H H been placed. When Tsoi, Yu and D2 defined Stand News as a second I edition of House News, how could they have expected that Stand News I would receive more advertising revenue than House News did and break J J even? It is untenable to argue that Tsoi did not mind losing money. That is K because if he were a man of means which allowed him to lose money and K moreover he was willing to lose money, he would not have closed down L L House News suddenly four and a half months earlier. Hence, the only M reasonable and irresistible inference is that Tsoi had his financial M difficulties tackled and his concern allayed within the four and a half N N months. Surely, there must have been a funder who had already funded or O had promised to fund the working capital needed. There might have been O one or more than one funder, who could be an individual or a group. In any P P event, this or these funders did not inject the capital for profit making Q because from the experience of running House News, it was possible to say Q that losing money was inevitable or, at the very least, the period of loss R R would not be short. S S 419. I am certain that this inference is correct because it is T T consistent with the answer to Frequently Asked Question 5 of the Launch U U V V  - 224 - A A B Statement. The answer to that question reads: “Initial operating funds were B C donated by some Stand News board members and others who share Stand C News’ philosophy. All donations were unconditional.” According to D2’s D D evidence, both he and Yu lacked the means at that stage. So it can be E deduced that “some Stand News board members” in that answer certainly E referred to Tsoi who had provided some of the startup capital. With regard F to the identity of “others who share Stand News’ philosophy”, neither that F G answer nor other parts of the Launch Statement elaborated on it. G H H 420. The Launch Statement was silent about the amount of the I startup capital. So was D2’s testimony. D2 was interviewed by Apple Daily I on 23 May 2020, and the interview was published in Apple Daily on 21 J J June 2020 109 . According to that report, D2 “disclosed in 2015 that the K monthly expenditure for the media outlet was roughly $500,000 while the K office was lent by a friend as a goodwill gesture.” Therefore, an educated L L guess is that the abovementioned donor must have provided Stand News M with seed money in the sum of many times of $500,000, because as a matter M of course, it would take a media outlet some time before it would be able N N to establish its reputation and business in order to earn income from O advertisement. In particular, at its inception, Stand News had “stopped O accepting public donation for the time being.”: see Question and Answer 4 P P in Frequently Asked Questions in the Launch Statement. It can be inferred Q that the funds provided by these donors must have amounted to millions of Q dollars. R R S S T T 109 Exhibit P37(2) U U V V  - 225 - A A B 421. According to the bank records of Stand News 110 and the B C evidence of Detective Police Constable 4420 (PW25), D1, through D2, Yu C and Tsoi, had applied to HSBC to open an account on 5 Jan 2015 and had D D obtained approval to open a Business Direct HKD Savings account and a E HKD Current account. Money could be deposited into this savings account E by way of cash, transfers (including bank interest) or cheques, and, starting F F from 20 May 2015, also by way of PayPal, after an application was made G to PayPal by D2 on behalf of D1111. According to PW25’s evidence, D1’s G net income in this savings account was HK$7,190,377.44 in 2015. The H H number of crediting transactions was 1,077112. I notice that within the 12 I months of that year, there were not many deposits in the sum of I HK$100,000 or more, and they totalled HK$5,878,066.21, representing J J 81.75% of the net income for the year. They were: K K Date Amount (HKD) Paid by L 22.1.2015 $100,000 cash L 23.1.2015 $2,300,000 cheque M M 11.2.2015 $100,000 cash 12.2.2015 $100,000 cash N N 10.3.2015 $116,500 cash O 13.3.2015 $100,000 cash O 2.4.2015 $100,000 cash P 4.5.2015 $1,300,000 cheque P 6.7.2015 $500,000 cheque Q Q 3.8.2015 $250,000 cheque 5.8.2015 $500,000 cheque R R 22.9.2015 $250,000 cheque S 4.12.2015 $161,566.21 PayPal S 110 T Exhibit PF1 T 111 Exhibit P23 112 Exhibit P23A(1) U U V V  - 226 - A A B B Total: $5,878,066.21 C C D 422. Despite the lack of direct evidence, since the Launch D Statement explained that parts of Stand News’ startup fund had come from E E “others who share Stand News’ philosophy” and that the donations were in F the sum of millions of dollars, the only reasonable and irresistible inference F is that these donations came into D1’s bank account by large deposits. The G G abovementioned deposits that were over HK$100,000 did not appear to be H Stand News’ ordinary operating revenue. Even on the assumption that all H the money credited to the account in cash or through PayPal were operating I I revenue, and the total amount of the six cheque deposits mentioned above J was as much as HK$5,100,000; and even on the further assumption that J not every cheque deposit was a donation fund, by the time when Stand K K News ceased operation, save one cheque deposit of HK$2,308,150 on 4 L July 2019, the account had not received any other cheque deposit of HK$1 L million or more. Therefore, these two cheque deposits of HK$2,300,000 M M and HK$1,300,000 remarkably stood out and were exceptional to Stand N News in terms of their amounts. The deposit of HK$2,300,000 was made N on 23 January 2015, which was just at the initial stage of the operation of O O Stand News; and the deposit of HK$1,300,000 was made about four P months later. The only reasonable and irresistible inference to be drawn is P that these two cheque deposits totalling HK$3,600,000 were startup funds Q Q provided to Stand News by donors, which were sufficient to allow Stand R News to operate for at least six to seven months even with no revenue. R S S 423. It is against this factual background that I consider the T evidence of D2 on the trust arrangements. In his evidence, D2 insisted that T U U V V  - 227 - A A B B he had signed documents concerning the trust arrangements with Yu and C Tsoi, but he failed to state clearly the contents of the documents. C Nevertheless, I believe that they did sign documents in relation to the trust, D because there are some documents supporting D2’s testimony on that. D E E 424. According to the evidence of Police Constable 16505 (PW22), F during the search in Zone A at Stand News’ office, he found a black recycle F G bag containing Indepth Global’s company documents 113 and Web G Network’s company documents 114 on the left side of the top compartment H H of a metal document cabinet. The photo exhibits115 show where these items I rested. As shown in the photographs, the website, “www.offshore- I inc.com”, is printed on the outside of the black recycle bag. PW22 also J J found House News’ documents116 in the lowest compartment of the same K metal cabinet. Therefore, this cabinet appeared to be for keeping K documents related to the media business. D2 and D3 do not dispute that the L L police found these documents and where they were found upon search117. M M 425. Mr Tang, PW15, works at the Vistra International Group. In N N his evidence, PW15 stated that some companies under the group provided O the services of setting up overseas companies. He obtained from the office O computer the electronic copies of the company documents of Indepth P P Global and Web Network and the computer records of some invoices and Q receipts118. An Indepth Global Certificate of Incumbency (“Certificate of Q R 113 R Exhibit PC13 114 Exhibit P14 S 115 S Exhibits PD36 and PD37 116 Exhibits PC20 and PC21 T 117 See paragraph 56, the Admitted Facts (Exhibit P1) T 118 Exhibit PE5(2) to (6) U U V V  - 228 - A A B Appointment”) dated 10 December 2014 showed that Tsoi was the sole B C director and shareholder of Indepth Global as at 8 December 2014. The C issuing company of the Certificate was “Offshore Incorporation Limited” D (“Offshore Incorporation”), which was the company name printed on the D E aforesaid recycle bag. At the top of the document there was the logo, E “OIL” 119 . PW15 explained in his evidence that this company was the F F former company name of Vistra. G G 426. Among Indepth Global’s company documents found by the H police in Stand News’ office, pages 17 to 21 of exhibit bundle PC13 are H I “British Virgin Islands (“BVI”) Business Companies (“BC”) Practice I Notes” issued by Offshore Incorporation in June 2014. Its company logo is J J “OIL”. The document on page 15 is titled “Documents in Company Kit – K Indepth Global Limited”, which appears to be a list of documents setting K out what documents are inside the Indepth Global company kit. The first L L item on the list of documents is “Memo from OIL to Indepth Global M Limited”, which appears to be a memorandum issued by Offshore M Incorporation to Indepth Global. The 2nd to the 29th items appear to be N N Indepth Global’s company documents, including minutes of meetings, the O register of shareholders, the register of directors, and the company seal and O chop. Page 14 of the exhibit bundle PC14 is a list of documents issued by P P Offshore Incorporation to Web Network, recording which documents are Q kept in Web Network’s company kit. Q R R 427. As illustrated by these documents, it is beyond doubt that S Offshore Incorporation was the company helping Tsoi with incorporating S the two companies, Indepth Global and Web Network, in December 2014. T T 119 See page 5 of the bundle, Exhibit PE5E(2) U U V V  - 229 - A A B B From the lists of documents of the two companies, it appears that they were C updated on 25 February 2020. C D D 428. In Indepth Global’s list of documents 120 , three of the E documents appear to be of significance. They are: E F (a) “Notification dated Jan 19, 2015 from Tsoi Tung Hoo Tony to The Board F of Directors of Indepth Global Limited about donation” (the 5th item); G G (b) “Declaration of Trust dated Jan 19, 2015” (the 6th item); and H H I (c) “Minutes – Consent to the actions and adopt the resolution about I Declaration of Trust” (the 15 item). th J J These documents appear to be records of company activities and K K resolutions prepared or retained in accordance with the company’s L memorandum of Indepth Global, and hence were kept in the company kit. L Although the originals of these three documents are missing, the M M descriptions given by the list of documents suggest that they are related to N N the trust arrangement. Therefore, I believe that Tsoi, Yu and D2 did sign O the documents related to the trust on that day. As D2 referred to only one O trust arrangement, the document they signed must be or included in the P “Declaration of Trust dated Jan 19, 2015”. The question that follows is, P Q “What is the content of this declaration of trust?” Q R R 429. Despite the absence of the text of this declaration of trust, I S am able to, based on the evidence of D2 and the legal principles under the S law of trust, infer some basic terms in the declaration of trust. In D2’s T T 120 Page 15 of the bundle, Exhibit PC13 U U V V  - 230 - A A B B evidence, he recalled that, under the technical arrangements, the three of C them still owned the shares of Indepth Global, but he, Yu and Tsoi had C given up the financial interests of their equity and their rights to dispose of D D the shares; and they were also informed that, in the event of liquidation of E Stand News in the future, they would have to give up the residual assets of E Stand News as well. Therefore they, too, had agreed to donate the property F F to non-profit making or charitable organisations. It can be inferred from G D2’s evidence that the three of them must have acted as the trustees under G this trust, because under the law of trust, the legal ownership of trust H H property necessarily belongs to the trustees, whereas the beneficial I interests of trust property, by operation of law, go to the beneficiaries at the I moment they become the trustees of the property (for instance, when the J J declaration of trust is made). Hence, the declaration of trust signed by D2, K Yu and Tsoi, must have included the provision that they undertook to be K the joint trustees, that the single share of Indepth Global stock jointly L L owned by them was the trust property, that they undertook to discharge the M duties of trustees, that they would manage and use the trust property for the M purpose of the trust and for the benefit of the beneficiaries, that they gave N N up the financial interests of equity, and that they would not assign or O transfer their trust property to others without the consent of the O beneficiaries. It can be inferred that the declaration of trust dated 19 P P January 2015 must have included other terms stating the identities of the Q beneficiaries, the purpose of the trust, the responsibilities of the trustees in Q greater detail, etc. R R S 430. According to D2’s evidence, the purpose of this trust S arrangement was to make known to the public that targeting the three T T founders of Stand News or any one of them would be futile, as they were U U V V  - 231 - A A B unable to assign the company’s shares. They believed that this would B C enable Stand News to continue developing. I do not believe that this was C the genuine reason, because had there been truly outsiders targeting or D D forcing out Stand News, the most direct way would have been to force them E to terminate the operation of Stand News, instead of making them E surrender the shares. Tsoi, Yu, and D2 surely understood this clearly, F F because in their own words, the abnormal death of House News had been G caused by Tsoi’s personal freedom and safety being threatened, whereas G they have never claimed that anyone had forced Tsoi to surrender his shares H H of House News. In other words, whether or not they were able to assign or I transfer Indepth Global’s shares had nothing to do with their ability to I avoid or endure suppression. J J K 431. On the other hand, if Tsoi truly was the sole funder of Stand K News (D2 had explained that he and Yu lacked means), this trust would L L not have possibly been created, because under a trust arrangement, a trustee M cannot terminate a trust without the consent of the beneficiary. However, M Tsoi had no reason to agree to be deprived of the power to withdraw and N N cut losses. From the experience of House News failing to secure O commercials, Tsoi would not possibly have agreed to run the risk of O suffering continuous loss without being able to withdraw. Neither was P P there any reason for him to be controlled by D2 and Yu who were his Q protégé. Hypothetically, once Stand News had suffered too much loss to Q be able to continue operating, D2 and Yu would surely agree to the shutting R R down of Stand News by Tsoi. It would have rendered this trust superfluous. S It demonstrates that this trust was certainly created for others to prevent S Tsoi from shutting down Stand News unilaterally. T T U U V V  - 232 - A A B B 432. Who, then, were the others (be they an individual or a group, C one or more than one)? The answer cannot be more obvious – they must C have been the donors who had provided Stand News with the startup D D capital. On 19 January 2015, Tsoi purposely made a report to the Board of E Directors of Indepth Global about the matter of “donation”. The Board then E passed a company resolution adopting and accepting the declaration of F F trust, followed by the execution of the declaration of trust. It is apparent G that there was a direct relationship between this “donation” and the G declaration of trust. The donors had every incentive to demand that they be H H made the beneficiaries of the trust to ensure and monitor the funds injected I into Stand News would be properly spent. Furthermore, creating a trust is I a convenient way to conceal the identities of the donors, for had they J J chosen to become shareholders and/or directors of Indepth Global, their K names would have appeared on the register of shareholders and directors K of Indepth Global. L L M 433. On the other hand, in order to acquire the startup capital, Tsoi M had sufficient incentive to agree to the trust arrangement. D2 and Yu had N N no reason to disagree. While acquiring the fund to enable Stand News to O operate, they could earn a salary by working at Stand News. They were to O suffer absolutely no loss either. D2 stated that they had given up the shares P P and the financial interests in equity of Indepth Global. However, had D2 Q and Yu not agreed to the trust arrangement, they would not have become Q shareholders of Indepth Global at all. They knew and had agreed that, for R R the purpose of the trust arrangement, they would all along be merely S nominal shareholders. It is proved by the facts that, after they had signed S the declaration of trust on 19 January 2015, a deposit of HK$2,300,000 was T T made to Stand News’ bank account on 23 January, the same year. U U V V  - 233 - A A B B C 434. Based on the above facts and analysis, I draw the only C reasonable and irresistible inference that, when Tsoi, Yu and D2 signed the D D said declaration of trust, the beneficiaries of the trust were the donors of E the startup capital (be they an individual or a group, one or more than one). E In other words, the beneficiaries of the trust had already existed, and their F F identity confirmed. It can be inferred that the declaration of trust dated 19 G January 2015 would certainly have recorded who the beneficiaries were, G or how to identify the beneficiaries. Of course, the whereabouts of this H H declaration of trust is now unknown. I I 435. In evidence, D2 recalled that the company had kept a trust J J document. He stated that if it had not been found in the police search, he K would not make any speculation. I do not know whether he was implying K that the police had not seized this trust document deliberately, or had L L discarded such documents. I am of the view that this trust document, if it M truly had been placed in Stand News’ office, would have been put together M with Indepth Global’s company documents, because it was related to the N N shares of Indepth Global. In other words, they would have been kept in the O black recycle bag on which the website address of Offshore Incorporation O was printed, and which was placed in the top compartment of the metal P P cabinet. However, in fact, neither the bag contained such documents nor Q did the police find them anywhere else in Stand News’ office. I believe that Q the police officers must have paid attention to documents which appeared R R to be of assistance to the police enquiry into Stand News or the relationship S between Stand News and other individuals or companies. Therefore, there S is no possibility that the police officers had deliberately skipped over or T T U U V V  - 234 - A A B B discarded such trust documents during the seizure, or had overlooked them C during the search. C D D 436. Furthermore, it is noteworthy that the police officers seized E from Stand News’ office a black hard drive121, from which the printouts of E 122 123 an organisation chart and Summary of Company of D1 were obtained; F F therein, the respective structures of D1, Web Network and Indepth Global, G and the connections among the 3 companies were set out 124. It is beyond G doubt that Stand News stored on its computer the particulars of the H company’s structure, but for unknown reasons, there were no records H I therein as to the trust arrangements concerning the shares of Global I Indepth, or the particulars in the trust documents, including the identities J J of the trustees, the subject matter of the trust, and the identities of the K beneficiaries. The omission obviously has nothing to do with the search of K evidence by the police. Instead, someone deliberately did not save such L L information. M M 437. When the prosecution cross-examined D2 as to why there was N N no such trust-related documents found in Stand News’ office, D2 said, “I O do not have much to say in response”. He said that he had a deep impression O that when he signed the document, someone had explained to him that in P P case the company was wound up, they would not be entitled to any benefit Q because they had already given up their financial interests; they therefore Q demanded that the trustees donate the company’s assets to charitable or R R 121 S Exhibits PC10(9) S 122 Exhibits PC11(C) 123 T Exhibits PC11(D) T 124 See paragraphs 44, 53 & 54 in the Admitted Facts, Exhibit P1 U U V V  - 235 - A A B B non-profit making organisations, but the names of beneficiaries were not C given and that the trustees were to distribute them. The prosecution asked C D2 who the trustee was given that the beneficiaries were to be nominated D by the trustees. D2 said, “If my memory serves me right, it was HSBC.” D E When pressed by the prosecution, he said, “Anyway, it was a company E specialising in this kind of trust arrangement, the business of trust”. When F the prosecution further asked, “That is, you people patronised HSBC, who F G was to name some unknown person as the trustee, and this trustee would G further decide to which beneficiary the money would go in the future. That H was the arrangement?” D2 answered, “That is what I recall, mm.” I am of H I the view that this part of D2’s evidence is not credible. He was being I ambiguous about the identity of the trustee. He, Tsoi and Yu were already J J the trustees, so why was another trustee needed? Further, he indicated that K the trustee would nominate a beneficiary in the event of liquidation of K Stand News, and the beneficiary would be given the assets as a gift. L L However, in the Launch Statement, it was stated that the trust arrangement M was for Stand News not to be controlled by anyone, to be able to have M “sustainable development”, that is, to be able to carry on with media work. N N It was not about dealing with and allocating Stand News’ residual assets O when it was liquidated. I am certain that D2 concealed from the court the O identities of the beneficiaries (that is, the donors), or at the very least, P P concealed the means to identify the beneficiaries. Q Q 438. I believe that, in the declaration of trust dated 19 January R R 2015, the identities of the beneficiaries or the means to identify the S beneficiaries were set out. Apart from this, Stand News’ office kept the S company documents of Indepth Global, but not the declaration of trust T T dated 19 January 2015 and the relevant documents. Stand News’ computer U U V V  - 236 - A A B B that stored the information of its company structure did not contain any C records of the beneficiaries of the trust either, but the beneficiaries held C Stand News’ beneficial interests. Moreover, at least in theory, in D D accordance with the design of the trust stated in the Launch Statement, in E the event that D2, Tsoi and Yu were unable to discharge their duties, Stand E News’ development would still be able to continue; that means this trust F would still carry on, but the beneficiaries’ information was absent. Under F G such circumstances, the only reasonable and irresistible inference is that G the information of the beneficiaries under the trust was deliberately H H removed and concealed. I I 439. Based on the interconnections among Indepth Global, Web J J Network, D1 and Stand News, I am certain that, after Tsoi, Yu and D2 had K signed the declaration of trust dated 15 January 2015, the beneficiaries of K the trust owned the beneficial interests of Indepth Global, Web Network, L L D1 and Stand News, regardless of how the legal ownership of these M companies or organisations was held by different entities. Simply put, Tsoi, M Yu and D2 essentially ran Stand News for the beneficiaries of the trust (that N N is, the funders) who did not wish to be identified. O O 440. When I say that the beneficiaries of the trust were the P P “funders”, I do not mean that Tsoi did not need to provide Stand News with Q further funds, because the Launch Statement clearly stated that Tsoi Q provided funds as well. Likewise, I do not rule out the possibility that Tsoi R R had other financial arrangements with the beneficiaries of the trust. S However, there is no doubt that without the startup capital from the S sponsors, it would not have been possible for Tsoi, Yu and D2 to found T T and run Stand News. U U V V  - 237 - A A B B C 441. Against the background of the trust arrangements, I now C consider the contents of the Launch Statement. I make the following D D findings. E E 442. Firstly, the Launch Statement suggested, explicitly or F F implicitly, that the suppression faced by House News as a media outlet had G led to its “abnormal death”. This is not true. The real reason behind the G closure, as stated in a post 125 on Tsoi’s Facebook page, was unfounded H fears, with Tsoi questioning whether he was being “paranoid”. The primary H I cause for the end of House News was a business decision by Tsoi, as the I business had been in deficit for as long as two years due to a lack of J J advertisements. In a capitalist economy, it is a customer’s business K decision whether or not to place an advertisement, and this remains a K normal business decision even if influenced by political reasons. As a L L businessman, Tsoi would surely be aware of this. Therefore, it was not an M “abnormal death” for House News. M N N 443. Secondly, the Launch Statement suggested, explicitly or O implicitly, that the trust was created to resist external suppression. This is O not true. The reasons were to acquire startup capital and to prevent Tsoi P P from unilaterally shutting down Stand News. Q Q 444. Thirdly, the trust arrangements mentioned in the Launch R R Statement did not reflect or did not clearly reflect the actual state of affairs S of the trust. Under the trust arrangements, the beneficiaries were the S beneficial owners of Stand News. Tsoi, Yu, and D2, as trustees, had to T T 125 Exhibit P37(1) U U V V  - 238 - A A B B operate Stand News in accordance with the trust arrangement. The claim C in the Launch Statement that “all donations are unconditional” is incorrect. C Donors provided startup capital to become trust beneficiaries, which was a D D condition. E E 445. In re-examination, Ms Eu SC asked D2 about the reference to F “stance” in the Launch Statement. D2, in his testimony, had referred to the F G values of Stand News. Ms Eu SC asked D2 to clarify the issues regarding G the values and stance of Stand News. D2 stated that their platform pursued H H and adhered to some core universal values, but in terms of political I position, “(it) did not take any stance.” I J J 446. However, D2’s testimony does not align with the Launch K Statement, which reads: “Stand News, like House News, is Hong Kong- K oriented, and firmly believes that Hongkongers are to determine our city’s L L future. Democracy, human rights, freedom, the rule of law and justice are M the core values of Hong Kong that we are committed to upholding.” The M first part of this sentence illustrated the stance of Stand News, while the N N second half stated its commitment to safeguarding Hong Kong’s core O values. O P P 447. Careful analysis indicates that the sentence begins with Q “Stand News, like House News” to tell readers that Stand News shared the Q same philosophy as House News. The next part, “(it is) Hong Kong- R R oriented,” literally means that Stand News prioritised Hong Kong and S based all its considerations on it. The following section, “(it) firmly S believes that Hongkongers are to determine our city’s future,” directly T T stated Stand News’ firm belief that the people of Hong Kong should decide U U V V  - 239 - A A B Hong Kong’s future. Stand News was established in December 2014, a B C time when theories of separatism and segregation from China, such as C localism and nationalism, were gaining traction in Hong Kong society, D D particularly in the tertiary education sector. The Occupy/Umbrella E Movement had just ended unsuccessfully, and Tsoi, the proprietor of E House News, once hailed as one of the “Ten Martyrs of Occupy Central,” F F had become a deserter but claimed he was going to run a media outlet G aligned with House News once again. To appeal to readers and supporters G under these circumstances, it was necessary to explain Stand News’s H H political proposition to the public, especially given its launch at that time. I It would not be surprising for it to share its political views and media line I with readers. J J K 448. After reading the entire Launch Statement, it is clear that the K stance of Stand News extended beyond merely safeguarding universal L L values. Immediately following the aforementioned sentence, it is stated M that: “by naming it Stand News, we are as fearless as ever in taking a stand, M without any disguise or evasion.” Declaring a “stance” must have implied N N that the beliefs and insistence that Stand News had on certain issues might O not be universally accepted. By stating there would be no “disguise or O evasion,” it acknowledged that its beliefs and insistence might not be P P embraced and could even provoke resentment. Therefore, it is evident that Q the “stance” claimed by Stand News did not refer solely to universal values. Q The next sentence, “we insist on reporting the truth and will not twist the R R facts because of stances,” emphasised a commitment to factual reporting S regardless of their philosophy. It continued with, “Stand News allows S different stances and viewpoints to clash,” indicating that while it T T maintained its own stance, others were entitled to theirs, and the differences U U V V  - 240 - A A B B or similarities would not affect their clashes on the platform of Stand News. C C 449. The final sentence of the Launch Statement is pivotal: “Hong D D Kong is the home turf of Hongkongers; defending the home turf is our E unyielding stance.” First of all, “Hong Kong is the home turf of E Hongkongers” obviously means that Hong Kong belongs to the people of F F Hong Kong, who have the right to control and lead, make decisions on all G affairs, and have absolute power and influence, whereas others are merely G guests without decision-making authority over Hong Kong’s affairs. The H following part, “defending our home turf”, must mean safeguarding the H I status and interests of Hong Kong people in Hong Kong, and when I considered together with the earlier statement, “firmly believes that J J Hongkongers are to determine our city’s future”, the meaning of K “defending our home turf” must include safeguarding the power of Hong K Kong people in controlling their own future. The ensuing part reads, L L “(defending the home turf) is our unyielding stance”. When it comes to M “yielding”, the prerequisite is that there must be an opposite party to Stand M News; otherwise, there would be nothing for Stand News to yield to. N N However, that party must be the People’s Republic of China, which O exercises sovereignty over the HKSAR, as well as the Central Government O and the SAR Government, which enforce the constitutional order and status P P of the HKSAR. In essence, with this statement, Stand News expressed in Q strong terms its political proposition, which was Hong Kong’s localism for Q Hongkongers’ autonomy excluding China. I am sure that Stand News had R R made its political stance clear in its Launch Statement, and it is an absolute S lie for D2 to claim that Stand News did not take a political stance. I reject S this area of his testimony. T T U U V V  - 241 - A A B B 450. Considering the establishment of Stand News, its Launch C Statement, and the trust arrangement made by Tsoi, Yu, and D2 with their C funders who did not wish to disclose their identities (who according to the D Launch Statement approved of Stand News’s journalistic philosophy), I am D E certain that D2 and Tsoi and others, for the benefit of the anonymous E funders, operated an online media outlet in Hong Kong called Stand News F to support and promote localism for Hong Kong’s local autonomy. F G G 451. I notice that D2, in his testimony, and counsel for the defence, H H in their final submission, reiterated that Stand News, D2 and D3 all acted I in accordance with the Launch Statement. I J J 452. Having addressed the source of funding for Stand News and K its political proposition as stated in the Launch Statement, I now turn to K some of the editorials published by Stand News. D2 testified that the L L editorials were the collective work of the editorial desk and had been M reviewed and approved by him, representing both Stand News’s and his M stance. D2 pointed out that Stand News published very few editorials N N because they only addressed cardinal issues of principle or matters O concerning universal values, freedom, and democracy. On these issues, O they would not conceal their stance. D2 also testified that on major issues P P of right and wrong, he shared the same views as Tsoi and D3. Q Q (Stand News editorial “Why we ‘target’ the police” (14 June 2019))126 R R S 453. D2 testified that the editorial was issued after the large-scale S police-civilian conflict outside the Legislative Council on 12 June 2019, as T T 126 Exhibit P37(6) U U V V  - 242 - A A B B he had already noticed problems of police power or police brutality at that C time. The editorial made it clear that Stand News did not target police C officers personally, but emphasised that the police, as the only law D D enforcement force in Hong Kong legally allowed to use force against the E public, must be subjected to the most stringent standards of scrutiny and E monitoring. This was because their force and power were in no way F F proportional to the protesters they were facing. This scrutiny was the G greatest mission of the media as the fourth power. At the end of the G editorial, Stand News stated that it would stand firmly on the side of the H H egg, and that was why they targeted the police and the regime. Even I without guns and cannons, but only pens and cameras, they would continue I to be in the frontlines. Even if they were like a mantis trying to stop a J J chariot, they still wished the truth to be revealed and justice to be served. K K 454. D2 maintained that this editorial aligned with the Launch L L Statement because the issue of police power involved fundamental human M rights, freedom, and the rule of law, and that the monitoring of police M power was a crucial function of the media. D2 submitted several news N N reports127 to prove incidents of improper use of force by police officers on O and after 12 June 2019, which proved there was a factual basis for this O editorial. P P Q 455. Undoubtedly, Stand News and D2 could use their online Q platforms to pen and publish editorials that monitor and even criticise the R R police. However, they had to consider and analyse all relevant facts that S could be verified through honest and reasonable efforts, and then express S T 127 T Exhibits D2(222) to (229) U U V V  - 243 - A A B B their views honestly and ethically based on these facts. C C 456. The first paragraph of the editorial began with a reference to D D the police-citizen clashes on 9 June and 12 June 2019; Stand News claimed E to have documented what had actually happened. It then said: “We can E proudly state our stance: we are ‘targeting’ the police.” This wording was F rather provocative. Why was Stand News proud to “target” the police? F G Why did it have to sound emotional instead of simply pointing out what G was wrong with the police force? The editorial used emotionally charged H H words from the start, displaying hostility towards the police. Protesters and I their supporters, who just two days prior had been involved in what I officials had characterised as a riot, must have been pleased that Stand J J News appeared to sympathise with and supported them. K K 457. The editorial stated that “what we are ‘targeting’ is not police L L officers personally, but the fact that the police, as the only law enforcement M force in Hong Kong legally allowed to use force against the public, must M be subjected to the most stringent standards of scrutiny and monitoring...”. N N The reasons listed thereafter included: (1) The force and power possessed O by the police were in no way proportional to that of the protesters they were O facing; (2) Should confrontation erupt between the two parties, the police P P had the power to treat all people at the scene – including protesters, Q onlookers and the media – as suspects or thugs, and they could resort to Q nearly unlimited force to disperse, subdue and arrest them; (3) Even if they R R were repeatedly found to have abused their power and made arbitrary S arrests in the process, the number of police who were sanctioned and S prosecuted was very small and the consequences were minimal. In contrast, T T after protesters faced assaults, tear gas, and even rubber bullets and bean U U V V  - 244 - A A B B bag rounds, what awaited them was often years of imprisonment. When C such unlimited force and power were abused, people were like meat on a C chopping board, ready to be slaughtered. D D E 458. Whilst I fully agree that the Police Force must be restrained E and monitored in their use of force, the reasons given in this editorial were F F specious. First of all, the police and the protesters were not engaged in a G sports competition, and differences in equipment were inevitable. G Therefore, the focus should have been on whether the police had misused H H their equipment. For example, there would be no reason to attack the I protesters first without cause, or to use equipment that is unnecessary in I types or in numbers for the situation at hand. Each time, it was a matter of J J judgment depending on the situation on the spot. Additionally, the editorial K specifically mentioned, “In contrast, the protesters had only eye masks, K face masks, and umbrellas, and even though some of them were holding L L paving blocks, there was still a disparity of force between the two sides.” M The editorial clearly referred to the situation on 12 June 2019, but the truth M is that protesters dug up bricks from the pavement and threw them at police N N officers standing at the police cordons, which were violent acts that could O have caused serious injuries and deaths. Stand News should have pointed O out the misdeeds committed by the protesters, rather than downplaying and P P endorsing their unlawful behavior by using the “disparity of force” as an Q excuse to absolve them. Q R R 459. Regarding the second reason, the police did not have the S power to use almost unlimited force. They could only deploy reasonable S force to disperse people who needed to leave the scene, and their power T T was subjected to checks, balances, and supervision. Thirdly, cases of police U U V V  - 245 - A A B B officers being held criminally liable for abusing their power and making C arbitrary arrests have occurred from time to time. For example, in the case C of the so-called seven police officers and Superintendent Chu, the officers D D involved were prosecuted for mistakes made during the Occupy/Umbrella E Movement. Most were convicted and sentenced to imprisonment, with E their appeals to the Court of Final Appeal dismissed. Furthermore, even F F more importantly, it had only been two days after 12 June when Stand G News published this editorial. In this short period, no one could have G predicted whether any officers would be prosecuted or face disciplinary H H hearings for improper performance of their duties. By claiming that officers I who abused their power would face little or no consequences, Stand News I was disseminating unfounded statements to protesters and the public, thus J J arousing anti-police sentiments. Whether the public is at the mercy of the K police depends on whether the police have “unlimited force and power” K and whether they have abused their power. On 14 June 2019, it is doubtful L L that Stand News could honestly and reasonably have drawn such a M conclusion based solely on the events of 9 June and 12 June. M N N 460. However, it is neither necessary nor my intention to make a O ruling on whether the enforcement of the law by the police at the O demonstrations on 9 June 2019 or 12 June 2019 was proper or was an abuse P P of power. I would only like to point out that when Stand News said outright Q that they were not “targeting” police officers personally but the Police Q Force, it did not imply that individual officers should not be held R R responsible. Instead, it elevated any mistakes made by individual officers S during the demonstrations to systemic errors by the Police Force. The S problem is that when accusing the police of systemic errors, there must be T T evidence that the police had instructed and/or condoned the abuse of power U U V V  - 246 - A A B B and arbitrary arrests, but Stand News did not provide such evidence and C only portrayed the police as an abusive law enforcement force. C D D 461. The intention of Stand News was fully revealed in the E following passage. The editorial said, “The police, as the weapons in the E hands of the government, use force to build a high wall behind which the F F executive can hide and do as it pleases. We must remind them that their G power does not come from the regime, but from the people, and that their G guns should not be pointed at the people, and that the high wall they have H built should not block the people’s way to freedom.” However, the primary H I duty of the Police Force is to maintain public order (see section 10(a) of I the Police Force Ordinance, Chapter 232 of the Laws of Hong Kong). On J J 12 June 2019, large crowds surrounded the LegCo from early morning, and K there had already been calls and organisations for protesters to besiege the K LegCo before that day (see feature article of Stand News, “How did the L L pre-publicised storming take place?” (see paragraph 212)). It was M impossible for the police to take no action to protect the Legislative M Council. Moreover, had there not been protesters storming the police N N cordon line on 12 June, the police would not have enforced the law. This O is very clear because the police were far outnumbered by the protesters and O there was no reason to stir up trouble. Stand News described the actions of P P the police at the time as a defence of the executive’s recklessness. Q However, there is no factual basis for this, nor is there any basis for saying Q that the executive was using the police to implement tyranny. Stand News R R concluded by stating that it would stand on the side of the protesters. S S (Stand News editorial “Attacks on journalists are a big deal Collapse T T U U V V  - 247 - A A B of the system is a bigger deal” (23 July 2019)128) B C C 462. Undoubtedly, D2 wrote this editorial because the 721 incident D D at Yuen Long Station had happened. The arrangement of the article was E that right at the beginning, D2 put the scene of the police shooting at E protesters with tear gas, beanbag rounds and rubber bullets in Sheung Wan F F together with the scene of the white-clothed thugs armed with rattan canes, G wooden rods and iron pipes attacking members of the public in Yuen Long, G so that one might easily associate one incident with the other, i.e. both the H H police and the white-clothed thugs had attacked other people, and they I were on the same front. I J J 463. Apart from that, D2 said that the white-clothed thugs had K attacked members of the public “indiscriminately”. However, on what K basis did D2 form such a judgment? Since Stand News was doing live L L coverage when the Yuen Long Station incident happened, D2 must have M known or at least had direct evidence to know about the details of the Yuen M Long West Rail Station incident when he authored this editorial. There was N N no way he was ignorant about the fact that there had been a period of time O when two groups of people inside and outside the paid area of the station O (those outside the station being collectively referred to as the white-clothed P P men) were hurling abuses and throwing objects at one another and so on; Q some people inside the station had also shot water at the white-clothed men. Q Subsequently, the white-clothed men entered the paid area on the ground R R level, and the people inside the station then moved to the platform that was S on the upper level. Originally, the white-clothed men did not pursue these S people, but later on, with some people on the platform throwing objects at T T 128 Exhibit P37(9) U U V V  - 248 - A A B B them, the white-clothed men ran up to the platform and attacked the people C thereat. There is no doubt that what the white-clothed men did was wrong C and they had committed a serious crime. However, they were not attacking D members of the public “indiscriminately” but those with whom they had D E had verbal and physical disputes for some time. Those people inside the E station should definitely also be held accountable for their actions. D2’s F F portrayal of them as absolutely innocent in the editorial was not fair. G G 464. In the article, D2 strongly condemned the mob attack on H H journalists; he was absolutely entitled to do so and was even obliged to do I so. However, neither D2 nor any other editorial or feature article of Stand I News had ever condemned the use of violence by the protesters. J J K 465. In the editorial, D2 went on to note, “But while worrying K about the safety of journalists and denouncing savage acts, we must not L L forget, acquiesce in, connive with or contribute to the crumbled and ruined M system that has facilitated these savage acts.” This was the first time D2 M had ever mentioned “system” in the editorial, and it is apparent from the N N context that by “these savage acts”, he meant the savage acts of the white- O clothed men inside the West Rail Yuen Long Station. In other words, D2 O was alleging that “the crumbled and ruined system” acquiesced in, P P connived with, contributed to and facilitated the white-clothed men’s Q savage acts. Q R R 466. D2 said he did not mention “police in cahoots with the triads” S or accuse anyone of collusion in the editorial, but what he meant was S structural violence and calls for changes to the system. D2 further T T explained that since 12 June, many things had emerged giving rise to U U V V  - 249 - A A B B doubts and public concerns over police power, but the Government had C failed to give any effective and direct response. At that time, people were C concerned about what would happen given the Government’s hard-line D D attitude in spite of the conflicts between the police and the public. E Unfortunately, the 721 incident occurred in the end. This incident had E seriously affected the Government and the Police Force, causing their F F image and credibility to fall off a cliff. It was not difficult for people to G discern that at the end of the day, the problem was attributed to public G opinion and public sentiments in Hong Kong not having been adequately H H reflected in the elections of public officers. D2 alleged that an adequately I democratic system was actually absent in Hong Kong. If there had been an I adequately democratic system in Hong Kong, there would have been a J J mechanism to alleviate or cope with the conflicts in the face of major K political events. This was because if a government had experienced a K number of incidents and its popularity had dropped drastically, it was L L highly likely that the government or the ruling party would step down, or M that there would be a mass resignation from the cabinet or a change of the M leader. In D2’s view, there were many ways to effect these changes under N N a democratic system because public opinion should be reflected in the O elections of public officers, public sentiments should be reflected in the O legislature to exert pressure on those in power, and the arrangements in the P P system should make the government respond. But sadly, this problem had Q never been resolved in the system of Hong Kong. According to D2, this Q was the problem of structural violence that he talked about in the editorial. R R S 467. D2 was not credible. In the editorial, he described at length S the inaction of police, that high-ranking officers of the force were putting T T their arms around the shoulders of the suspected culprits and being U U V V  - 250 - A A B “appreciative” of their good intentions, “acquiescing in, conniving with B C and facilitating the triads and getting others to take revenge on the C protesters”, etc. He was making an accusation of or at least alluding to D D collusion between the police and the triads. In the article, D2 employed E descriptions like “despicable” and “to die ten thousand deaths is not enough E to cover up their guilt” in his scathing criticism of the police. F F G 468. D2 also remarked, “Since the outbreak of the anti-ELAB G movement in June, the question that has been haunting the minds of Hong H H Kong people is: How could Hong Kong have degenerated to such a state? I The focus should never be on the visible violence only. There is only one I root cause, that is, the invisible structural violence brought about by the J J imbalance of public power in the political system and materialised through K the guns and shields of the police, which has torn Hong Kong’s apparent K prosperity and stability to shreds.” L L M 469. D2 had taken advantage of what had happened on the night of M 721 to express his own ideas. As seen from the testimony of D2, the idea N N put forward by him or Stand News was that the absence of a democratic O system in Hong Kong had led to police brutality and indifference on the O part of the Government, and that there had to be a democratic system in P P Hong Kong, which was not in place, in order to bring about changes in this Q regard. In other words, he was advocating for a change of system (which I Q believe included the electoral methods for the head of the HKSAR and for R R the Legislative Council). S S T T U U V V  - 251 - A A B (Stand News editorial “Hold fast to every inch of free soil Use every B C glimmer of light making its way through tiny crevices” (Dated 1 July C 129 2020) ) D D E 470. The first and second paragraphs of the editorial spread panic. E F 471. In the second and third paragraphs, “one country, two F G systems” was claimed to have been distorted and the NSL was vilified. As G the NSL had become effective for less than 12 hours at the time when this H H editorial was issued, there was no way for him to know how the law would I be enforced in practice. On the other hand, he was completely silent about I its effect in ending chaos in Hong Kong and protecting national security. J J K 472. Another aspect is that D2 portrayed Hong Kong as a place K ruled by a totalitarian government, where Hong Kong people had no L L freedom of association, freedom of speech, freedom of assembly, freedom M from fear, and were suffocating under the window of legal weapons. M N N 473. D2 then quoted the words of former Czech President Havel O that under totalitarianism, everyone might become a dissident, and the so- O called dissident was not a role deliberately chosen by anyone. Simply by P P being loyal to themselves, people were already at risk of going beyond the Q red line, being classified as second-class citizens, and becoming an enemy Q of the system. D2 was essentially telling the people of Hong Kong that R R regardless of whether they had taken part in any anti-government activity S before the enactment of the NSL, they could possibly become a dissident S and an enemy of the system and be subjected to suppression. T T 129 Exhibit P33(10) U U V V  - 252 - A A B B C 474. D2 concluded by saying, “we will always turn to the free soil C and resort to every glimmer of light that makes its way through tiny D crevices,” implying that Hong Kong had lost most of its freedom and was D E going to lose it altogether. He was questioning the legality and legitimacy E of the Central Authorities and the SAR Government. F F G 475. That D2 did not accept the constitutional order of “one G country, two systems” can be seen from the antepenultimate paragraph of H H the editorial. He said that the miracle of Hong Kong in the crevices had I always been because of the air of freedom and the difference between Hong I Kong and the Mainland. His use of terms such as “this borrowed place” J J and “borrowed time”, which were used to describe Hong Kong when it was K under British rule, revealed his nostalgia for the era of British rule. He K remarked, “separated by a river, the precious land of Hong Kong as it is, L L came by virtue of its difference from the Mainland; the freedom that is M original and rare, has become the glory on the frontier of the powerful M nation.” That showed his non-acceptance of the return of Hong Kong to the N N People’s Republic of China. O O 476. The last line of the editorial reads: “May we all be united, P P brave the gun fire and not live our lives in vain.” There was no doubt that Q D2 and Stand News were boosting the morale of the protesters and making Q it clear that they were working together. The purpose of D2 and others R R continuing to run Stand News was to fight alongside the protesters. S S (Featured discussion at the summit for online media on 14 December 2019 T T [Transcript Exhibit PH7(3)]) U U V V  - 253 - A A B B C 477. D3 attended the summit for online media as a guest speaker C to talk about the live coverage of the demonstrations by Stand News. At D D that time, D3 was there in the capacity of the Deputy Chief Editor of Stand E News and spoke on behalf of Stand News. In his speech, D3 explained to E the audience that from the live coverage by Stand News, the audience F F would often see a lot of scenes involving the use of force, be it by the police G or by the protesters, scenes depicting vigilantism, a lot of blood and G injuries. According to D3, when they did live broadcasts, they were unable H H to reflect what was going on behind the scenes. He further explained, the I simplest questions were why this group of people considered the use of I force appropriate means, or even whether they had any bottom line or a J J common standard for the use of force; this could not be reflected in the live K coverage. That was why they would do interviews and ask questions of the K interviewees in the hope that they could explain in detail why they used L L force and what their thinking was behind the launching of the petrol bombs. M Before ending his speech, D3 concluded: M N N “Then ... at the end of the day, actually... whether we are doing live broadcasts, or feature stories, written stories … live coverage, we want to present to the readers O O something that is closer to what is actually occurring. Then we... our belief or our P hope, the reason why we would like to achieve this is that (we) believe it is only P when you get closer to the truth, or only when (you) understand more about the Q movement itself or what the participants of the movement think can we have a Q common basis for discussion and comment, or even... participate in this R R movement, that’s all I want to say, alright, thank you everyone" (00:44:55- 00:45:45) S S T T U U V V  - 254 - A A B B 478. I have given careful consideration to the speech of D3, who C asked the audience not to only focus on what was shown on the screen C when watching the live broadcast done by Stand News, but to consider as D D well what it was like behind the scenes. D3 pointed out that there were E often scenes of blood and injuries in the live broadcast footage, but he E asked the audience not to focus on these images, but rather to think deeply F F about why the protesters had used force and whether there were any criteria G for them to do so. D3 invited the audience to understand the movement G itself and the participants of the movement better in order to have a H H common ground for discussing and commenting on the movement and its I people, and even for participating in the movement. No doubt, he appealed I to the audience not to separate themselves from the protesters for the reason J J of their resorting to violence or serious violence, but to consider why the K protesters did what they did. Obviously, he was trying to ask the audience K to understand the use of force by the protesters, from which it could be L L inferred that he had a supportive attitude towards the protesters; also, D3 M finally called for the audience to even participate in the movement. D3 did M not testify. D2 tried to explain this by stating that he believed that D3 was N N only asking the audience to understand more about the movement and the O protesters in order to have discussions. I find that D3 meant exactly what O he said at the forum summit. I am sure that the stance of D3 and Stand P P News was to support the anti-ELAB and the protesters. Q Q (News Stand)130 R R S 479. News Stand was a paper publication of Stand News. It S contained a number of articles aiming to present aspects like the creativity, T T 130 Exhibit PC9(25) U U V V  - 255 - A A B B the actions and the price paid along the protest journeys of Hong Kong C people. C D 480. Concerning the part about actions, it was entitled “Prelude to D E the protest 6.12” and contained the featured article “How did the pre- E publicised storming take place?” The article mentioned how on 12 June F F 2019, protesters besieged the Legislative Council resulting in the police G taking actions. The author pointed out that the protesters were occupying G the roads around the Legislative Council, not resigning themselves to H H repeating the ultimate failure of the prolonged occupation of the Umbrella I Movement. They were ready to escalate the battle to storm the Legislative I Council, following the example of Taiwan’s Sunflower Movement. The J J article ended with this sentence, “The 6.12 storming has opened up the K valiant face of the Anti-ELAB Movement.” K L L 481. Concerning the price paid, there were two articles as follows: M M (1) The first one was titled “The ins and outs of the seven-year N N jail term of Lo Kin-man, defendant in the 2016 Mongkok Riot O Case”. Lo Kin-man, an iconic figure of the localism camp, O was sentenced to seven years’ imprisonment for the 2016 P P Mongkok riot case. He started to serve his sentence in 2018 Q and was released in January 2023. He did not participate in the Q Anti-ELAB Movement. According to the article, Lo R R considered that the 6.12 incident of storming the Legislative S Council a continuation of the 2016 Mongkok Riot of the S localism camp, also known as the Fish Ball Revolution. The T T article quoted Lo’s girlfriend’s interpretation of a banner that U U V V  - 256 - A A B read: “Revolution is to love better”, as saying that the love B C referred to therein was love that could last several decades or C even several generations. The article thus encouraged the D D readers to engage in long-term protest. Since Lo did not E participate in the Anti-ELAB Movement at all, but the purpose E of producing News Stand was to “publish” different F information “about the Anti-ELAB Movement”, the only F G reasonable and irresistible inference is that the News Stand G was a history book by Stand News, a history book about the H H development and legacy of the localism camp. I I (2) The second one was titled “7.1 Legislative Council Protester J J Leung Kai-ping A community belonging to everybody”. It K was about the protesters breaking into the Legislative Council K on 1 July 2019. Leung was one of them and had spoken with L L his mask removed. Leung was another iconic figure of the M localism camp. The article promoted protests by relating M Leung’s hope of the protesters being united and understanding N N the storming. The community as termed in the title of the O article plainly referred to protest activities and such term was O used for winning over the public to support violent protests. P P Q 482. News Stand also included the above-mentioned Stand News Q editorial that vilified the HKNSL. Its content questioned the legality and R R legitimacy of the Central Authorities and the SAR Government, expressed S nostalgia about the era of British rule, rejected the constitutional order of S “one country, two systems”, and refused to accept the reunification of T T U U V V  - 257 - A A B Hong Kong with the People’s Republic of China 131 . This editorial B C obviously encouraged the public to resist the Central Authorities and the C SAR Government. D D E 483. Apart from the articles, News Stand also contained a number E of photographs, images etc. The most notable photograph was the first one F F on the back of the cover. The photograph was labelled as taken on 9 June G 2019. It showed a large number of people participating in a march and G demonstration in which the demonstrators were holding banners that read: H “Reclaim Hong Kong” and “Independence of Hong Kong”. The H I photograph appeared before the preface, which was a prominent position, I reflecting the main theme of News Stand. J J K 484. News Stand used the flag of Hong Kong Independence as the K photograph reflecting its main theme, recorded the violent storming of the L L Legislative Council as the prelude to the protest, encouraged readers to M engage in long-term protests by asserting that the violent storming was a M continuation of the 2016 Fish Ball Revolution and that the revolution was N N for love, and strived for support by stating that protest was a community O belonging to everybody. I am of the view that News Stand was actually a O record of protests, aiming to document and motivate the localism camp to P P grow into a localist force fighting for Hong Kong autonomy through the Q Anti-ELAB Movement. According to D2’s evidence, News Stand was Q issued in December 2020. As the articles therein were published in the R R online media of Stand News before December 2020, the publication of S News Stand by Stand News was a re-confirmation of the contents and the S messages conveyed by those articles. T T 131 See paragraph 481 U U V V  - 258 - A A B B C (The line taken by Stand News) C D D 485. From the background of the inception of Stand News, its E Launch Statement, its three editorials and its paper publication, which is E News Stand, I rule that the political ideology of Stand News was localism, F F and that the line it took was to support and promote Hong Kong local G autonomy, and that it had even become a tool for smearing and vilifying G the Central Authorities and the SAR Government during the Anti-ELAB H H Movement. My ruling does not mean that Stand News could not publish I other non-seditious publications, such as non-political news, messages I from the government or pro-establishment, or even interviews with J J government officials or pro-establishment figures. The defence that Stand K News also published other publications does not affect my ruling. K L L (Whether there was mens rea in publishing the articles) M M 486. D2 as the Chief Editor of Stand News, admitted having N N approved the publication of articles A1, A4, A5, A7, A10, A11, A12, A13, O A14 and A15, which I have ruled to be seditious. Having regard to the line O that Stand News took, I find that D2 had knowledge and he approved of P P the articles’ seditious intentions, and offered Stand News as the publishing Q platform to incite hatred towards the Central Authorities or the Hong Kong Q Government, to excite inhabitants of Hong Kong to attempt to procure the R R alteration, otherwise than by lawful means, of matters established by law, S and to incite hatred towards the administration of justice. In any event, D2 S had at least been reckless about the consequences of seditions. I find that T T D2 had the mens rea for section10(1)(c) of the Crimes Ordinance. U U V V  - 259 - A A B B C 487. When article A16 was published, D2 had already left the post C of Chief Editor and was succeeded by D3. I believe that D2 genuinely D D resigned from that post as he needed more free time to visit his wife who E was in custody, but D2 was still concerned about and advised on the E operation of Stand News. I find that article A16 was approved and F published by D3. Having considered the line that Stand News took, D3’s F G speech in support of the Anti-ELAB Movement when he appeared in the G forum summit for online media in the capacity of Deputy Chief Editor, the H H act of embedding video clips that showed again slogans of the protests and I the persistence in publishing A16 despite the complaint letter from the I police about it being misleading and biased, I find that D3 had knowledge J J and he approved of the article’s seditious intentions, and had offered Stand K News as the publishing platform to incite hatred towards the Central K Authorities or the Hong Kong Government and to incite hatred towards the L L administration of justice. In any event, D3 had at least been reckless about M the consequences of seditions. I find that D3 had the mens rea for M section10(1)(c) of the Crimes Ordinance. N N O 488. D1 employed D2 and D3 as the Chief Editor / Acting Chief O Editor for the production and publication of the articles in question on P P behalf of D1. As such, publishing these articles by D2 and D3 within the Q scope of the employment was tantamount to publishing the same by D1, Q and their intentions amounted to D1’s intentions. Since D1 was the R R proprietor, printer and publisher of Stand News, he was also presumed to S have published the articles under section 15 of the Local Newspapers S Ordinance, Chapter 268 of Laws of Hong Kong. T T U U V V  - 260 - A A B B G7. Conspiratorial agreement existed between the defendants C C 489. The evidence shows that Tsoi provided funds to set up D1 for D D operating Stand News, signed D2’s employment contract, approved D2’s E salary increase and approved the deployment of funds to the UK branch E office. D2 also admitted that Stand News was the operating platform that F F Tsoi had provided to him (“to create a stage”) for him to operate. Evidently, G Tsoi was the other directing mind and will, who had a higher position than G D2 and had the control of D1 and Stand News’ operations. Stand News H H ceased its operations shortly after the arrest of D2 and D3. I am sure that it I was Tsoi’s decision132. I J J 490. Tsoi, being the directing mind and will of D1, had the control K of Stand News’ operations and had a higher position than D2. The only K reasonable inference is that he must have had knowledge of the publication L L contents. In his testimony, D2 stated that the two of them shared similar M stances on key core values or major issues of principles. D2 used to be an M editor of House News that had been run by Tsoi previously and was invited N N by Tsoi to join as the Chief Editor upon the establishment of Stand News. O D2 agreed that the Chief Editor could be removed from office, but he O remained in that post until the arrest of his wife; he then had to visit her P P every day, rendering it impossible for him to work. Therefore, Tsoi must Q also have approved of D2’s decisions regarding publishing the Q publications. R R S 491. From Tsoi’s invitation of D2 to join Stand News as the Chief S Editor, his knowledge of the contents of the publications by Stand News, T T 132 See paragraph 12 above U U V V  - 261 - A A B B and his approval of D2’s decisions regarding publishing the publications, C including publishing the above publications which have been ruled to be C 133 seditious , I draw the only reasonable inference that Tsoi, on behalf of D D D1, had an agreement with D2 regarding publications by Stand News, E namely the conspiratorial agreement as stated in the charge of this case, on E the continuous publication of seditious articles in Stand News. F F G 492. D3’s taking over of the post of Chief Editor after D2 had left G the post must have received the consent and approval of Tsoi. H Undoubtedly, with Tsoi’s consent, there existed the same agreement with H I D3, as with D2, regarding publications by Stand News. In other words, I when D3 took over the post, he joined in the above conspiratorial J J agreement between Tsoi and D2. D3’s speech at the forum summit for K online media and his approval and publication of A16 also support such an K inference. L L M G8. Conviction M N N 493. The prosecution has proved beyond reasonable doubt that the O three defendants conspired to publish and/or reproduce seditious O publications, and I find the three defendants guilty of the charge. P P Q Q R R (W.K. Kwok) S District Judge S T T 133 See paragraph 384 above U U V V