區域法院（刑事）His Honour Judge Stanley Chan8/4/2021[2021] HKDC 424
合併案件：DCCC927/2020DCCC930/2020
DCCC927/2020
A A
B B
DCCC 927, 928 & 930/2020
(Consolidated)
C C
[2021] HKDC 424
D D
IN THE DISTRICT COURT OF THE
E E
HONG KONG SPECIAL ADMINISTRATIVE REGION
F CRIMINAL CASE NOS 927, 928 & 930 OF 2020 F
G G
--------------------------------------
H HKSAR H
v
I I
TAM TAK CHI 譚得志
J J
---------------------------------------
K K
Before: His Honour Judge Stanley Chan
L L
Date: 9 April 2021
M Present: Mr Anthony Chau, Senior Assistant Director of Public M
Prosecutions and Miss Crystal Chan, Public Prosecutor, for
N N
HKSAR
O Mr Philip Dykes, SC, leading Mr Jeffrey C K Tam & Mr Brian O
Ho Chuen Tsui, instructed by Michelle Tsoi Solicitors, for the
P P
defendant
Q Offence: [1] Incitement to knowingly take part in an unauthorized Q
assembly (煽惑他人明知而參與未經批准集結)
R R
[2], [4], [9], [10], [12], [13] & [14] Uttering seditious words (發
S S
表煽動文字)
T [3], [5] & [7] Disorderly conduct in a public place (公眾地方內 T
擾亂秩序行為)
U U
V V
-2-
A A
B B
[6] Holding or convening an unauthorized assembly (舉行或召
C 集一個未經批准集結) C
[8] Refusing or wilfully neglecting to obey an order given by an
D D
authorized officer (拒絕遵從或故意忽略遵從授權人員作出
E E
的命令)
F [11] Conspiracy to utter seditious words (串謀發表煽動文字) F
G G
--------------------
H RULING H
--------------------
I I
J Background J
K K
1. Originally the defendant applied for a stay application in
L relation to a total of 8 charges, namely 7 charges of uttering seditious words L
contrary to s 10(1)(b) of the Crimes Ordinance [CO] and one charge of
M M
conspiracy to utter seditious words. The stay application was scheduled to
N N
be heard on 31 March 2012.
O O
2. There are 6 other charges in the consolidated charge sheet
P P
[namely, Charges 1, 3, 5, 6, 7 and 8] but these charges do not relate to the
Q stay application. The consolidated charge sheet contains a total of 14 Q
charges.
R R
S S
T T
U U
V V
-3-
A A
B B
3. In a letter of 10 February 2021, defence solicitors raised
C 2 matters relating to the issue of further and better particulars of offence C
and that of election between the conspiracy charge and the substantive
D D
charges.
E E
4. For the sake of convenience and in consideration of legal costs,
F F
both parties agreed that these 3 issues, namely, the stay application, the
G issue of further and better particulars of charges and the election of charges, G
can be heard on the same day, 31 March.
H H
I 5. The defence filed their skeleton submission dated 22 March I
2021. The defence, at para 4 of the original submission, stated the grounds
J J
of the stay application as follows:-
K K
(1) the charges do not comply with the Indictment Rules
L L
Cap 221C regarding the obligation to supply particulars
M of the offences; M
N N
(2) the charges are unconstitutional as they are inconsistent
O with the Basic Law and the Hong Kong Bills of Rights. O
P P
(3) the preferment of the conspiracy charge and the transfer
Q of the case FLCC 1691/2020 amount to an abuse of Q
process or was done without jurisdiction.
R R
S S
T T
U U
V V
-4-
A A
B B
6. Further supplemental submissions by the defence were filed
C on 26 March and 30 March respectively. The theme of these supplemental C
submissions relates mainly to the issue of jurisdiction, an item which was
D D
placed under the heading ‘A point about jurisdiction’: para 5 to 13 of the
E defence’s original submission. E
F F
7. The prosecution filed their submission together with various
G authorities and legal documents on 29 March. G
H H
8. On 31 March, before submissions were made, I directed that it
I would be prudent for the defence to specify what exactly are the grounds I
for the stay application, and what are the grounds for the other issues. The
J J
written submissions made by the defence have to be amended so that all
K parties concerned can be sure what grounds are for what purpose. That is K
particularly of importance when the court is asked to deal with the stay
L L
application of certain charges.
M M
9. The principles for a stay are well established and can be found
N N
in Archbold HK 2021 Chapter 4 para 49 to 51.
O O
10. Consequent upon my direction, the defence submitted
P P
3 separate “Reformulated Skeleton Submissions’ relating to the abovesaid
Q 3 issues. Q
R R
11. Mr Dykes SC, counsel for the defendant, now submitted that
S it would be proper for him to argue the issue of jurisdiction first. S
T T
U U
V V
-5-
A A
B B
The issue of jurisdiction
C C
The position of the defence
D D
E 12. It was submitted that the District Court may not have E
jurisdiction to try and hear the seven charges of sedition charges and the
F F
sedition conspiracy charge.
G G
13. All along until the operation of the National Security Law
H H
(NSL), sedition offence is a summary offence. Mr Dykes SC submitted that
I following the CFA judgment in HKSAR v Lai Chee Ying [2021] HKCFA 3 I
[judgment handed down on 9 February 2021], the sedition offences under
J J
s 10(1)(b) of the Crimes Ordinance [CO] are offences endangering national
K security and the National Security Law applies. In this regard, the defence K
said that Art 41(3) of the National Security Law should apply which states
L L
that cases concerning endangering national security shall be tried on
M indictment. That covers sedition offence under s 10(1) of the Crimes M
Ordinance.
N N
O 14. On the premise that sedition offences are indictable offences, O
the defence argued that magistrates are not competent to try sedition
P P
offences because of the restrictions under Part I of the Second Schedule to
Q the Magistrates Ordinance. Q
R R
15. On the other hand, since sedition offences are indictable
S offences, the defence submitted that Part III of the Second Schedule to the S
Magistrates Ordinance will be invoked. The said Part III limits the power
T T
of transferring certain offences to the District Court. That explains why the
U U
V V
-6-
A A
B B
defence amended para 9 of the reformulated submission by saying that “a
C permanent Magistrate cannot transfer a s 10 [offence] to the District Court.” C
It was submitted that those indictable sedition offences can only be tried in
D D
the Court of First Instance [see para 11 of the defence reformulated
E submission on jurisdiction]. E
F F
The position of the prosecution
G G
16. The prosecution maintained their position as stated from
H H
para 58 to 71 of their original submission, even though it was prepared
I before the defence’s submission was further reformulated. I
J J
17. The prosecution insisted that the District Court has the
K jurisdiction to try all the sedition offences. It was submitted that the K
sedition offence is a summary offence because the offence provision does
L L
not have words ‘upon indictment or on indictment’. The enactment of NSL
M does not change the nature of sedition offence being a summary offence: M
para 65 of the prosecution’s submission. In addition, the prosecution
N N
argued that the sedition offences, being summary offences, were transferred
O together with other indictable offences to the District Court, pursuant to O
section 88(1)(b) of the Magistrates Ordinance. Hence the District Court has
P P
the jurisdiction to try all the charges.
Q Q
18. It was further submitted that ‘tried on indictment’ under
R R
Art 41(3) of the NSL does not mean that the trial can only be conducted in
S the Court of First Instance as suggested by the defence: para 67 of the S
submission.
T T
U U
V V
-7-
A A
B B
19. The defence attacked the position of the prosecution by saying
C that “the Prosecution’s case about jurisdiction does not get to grips with the C
defendant’s argument that it is not possible to say that sedition offences are
D D
offences endangering national security with the meaning of the NSL and
E that they are triable in the District Court as such.” [see para 12 of the E
reformulated defence submission]. In short, the defence said the
F F
Prosecution did not address the issue raised by the defence.
G G
Consideration
H H
I 20. The Law of the People’s Republic of China on safeguarding I
national security in the Hong Kong Special Administrative Region, in short
J J
the National Security Law or NSL, is a new law applicable to HKSAR from
K 11 pm on 30 June 2020: see preamble 2 in the Implementation rules for Art K
43 of the NSL.
L L
M 21. The importance of the issue of jurisdiction, in my view, has M
been underestimated by both parties.
N N
O 22. I am of the view that this jurisdictional issue can have a far O
reaching effect, directly or indirectly, on the effect of the Second Schedule
P P
to the Magistrates Ordinance. To this end, this issue is more important than
Q the stay application per se. Q
R R
23. It is necessary for me to mention a number of Articles under
S the NSL in the first place so that my ruling can be understood in context. S
T T
U U
V V
-8-
A A
B B
24. Art 65 of the NSL stipulates that the power of interpretation of
C the Law shall be vested in the Standing Committee of the National People’s C
Congress [NPCSC]. Unlike the usual local legislation in Hong Kong, there
D D
is no definitions section in the NSL except a brief mention of some legal
E terms under Art 64. E
F F
25. Art 41 says the NSL and the laws of the HKSAR shall apply
G to procedural matters, including those related to criminal investigation, G
prosecution, trial and execution of penalty, in respect of cases concerning
H H
offence endangering national security over which the HKSAR exercises
I jurisdiction. I
J J
26. Art 41(3) further states that cases concerning offence
K endangering national security within the jurisdiction of the HKSAR shall K
be tried on indictment.
L L
M 27. Art 45 stipulates that unless otherwise provided by the NSL, M
the courts in HK shall handle proceedings in relation to the prosecution for
N N
offences endangering national security in accordance with the laws of the
O HKSAR. O
P P
28. Art 62 makes it clear that the NSL shall prevail where
Q provisions of the local laws of the HKSAR are inconsistent with the NSL. Q
[Note: When asked, Mr Dykes SC accepted the position, that is to say, in
R R
case of inconsistency, the NSL prevails.]
S S
T T
U U
V V
-9-
A A
B B
29. In my view, for the present purpose, it is not the function of
C this Court, nor can this Court in such a position, to provide an authoritative C
interpretation of the various Articles under the NSL. What I am trying to
D D
do is to make a ruling upon the issues raised by the defence for all practical
E purposes in this particular consolidated case. E
F F
30. The first issue raised by the defence is the jurisdiction of this
G court to hear those 8 charges [namely Charges 2, 4, 9, 10, 11, 12, 13 and G
14].
H H
I 31. There should be no dispute that all Articles under the NSL I
should be read in the whole context with the General Principles under
J J
Chapter I in mind. Obviously it is of vital importance that a purposive
K approach should be adopted. In Hong Kong, we have the Interpretation and K
General Clauses Ordinance Cap 1. Under section 19 of Cap 1, it is said,
L L
“All Ordinance shall be deemed to be remedial and shall receive such fair,
M large, and liberal construction and interpretation as will best ensure the M
attainment of the object of the Ordinance according to its true intent,
N N
meaning and spirit.” Naturally, I consider that this principle of
O interpretation is applicable in this case. O
P P
32. As I have mentioned, the power of interpretation of the NSL
Q is vested in NPCSC. The NSL has a much higher legal status than the local Q
laws as it is a piece of national law and Art 62 provides its overriding legal
R R
effects over the local laws. For instance, the criteria for granting bail has
S changed drastically vis-à-vis the principles and considerations under Part S
1A of the Criminal Procedure Ordinance Cap 221.
T T
U U
V V
- 10 -
A A
B B
33. It was submitted by the defence that under the Schedule to the
C Magistrates Ordinance Cap 227, a magistrate is not competent to try C
sedition offences under s 10 of the Crimes Ordinance Cap 200.
D D
E 34. On the other hand, the defence also argued that under s 88(1) E
of the Magistrates Ordinance, a magistrate can only transfer an indictable
F F
offence to the District Court, except those specified in Part III of the Second
G Schedule. Incidentally, sedition offences, as offences under Part II of the G
Crimes Ordinance, are included in Part III of the Second schedule.
H H
Therefore, it was submitted that a magistrate cannot transfer these s 10
I sedition offences to the District Court. As these sedition offences cannot I
be lawfully transferred to the District Court, it follows that the District
J J
Court has no jurisdiction to try the sedition offences.
K K
35. Hence, the defence submitted that, at para 11 of the defence
L L
skeleton submission on the issue of jurisdiction, “In short, the implication
M of Article 41(3) of the NSL, is that the sedition offence is an indictable M
offence only within the meaning of section 2 of MO. The upshot is that
N N
only the Court of First Instance can try the sedition offences that are
O indictable offences only with the meaning of section 2 MO [the Magistrates O
Ordinance].”
P P
Q 36. In short, the defence submitted that section 10 offences are Q
either to be tried on indictment only in the Court of First Instance because
R R
of Art 41(3) of NSL, or alternatively, if the NSL does not apply, the sedition
S offences must be tried summarily by a magistrate under Part II of S
Magistrates Ordinance, or by a District Judge upon a lawful transfer of the
T T
case to the District Court [para 13 of the defence submission].
U U
V V
- 11 -
A A
B B
C 37. It is my view that broadly speaking, the NSL is promulgated C
to tackle those issues laid down under Chapter 1 of the NSL. This national
D D
law does not act as a piece of legislation to reconcile all the local legislations
E in Hong Kong. Hence Art 62 provides the NSL with a special status to E
prevail over the local laws if inconsistency between the NSL and local laws
F F
appears.
G G
38. On the other hand, Art 41(3) states that cases concerning
H H
offence endangering national security with the jurisdiction of the HKSAR
I shall be tried on indictment. Art 45 states that courts in Hong Kong shall I
handle proceedings in relation to the prosecution for offences endangering
J J
national security in accordance with the laws of the HKSAR.
K K
39. The defence does not argue that sedition offences under s 10
L L
are not offences endangering national security. The defence accepts that.
M M
40. In my view, if sedition offences are offences endangering
N N
national security, it would be absurd that the NPCSC would ‘exclude’ these
O s 10 offences from being tried in the District Court. In accordance with the O
NSL, it is clear that offences endangering national security do not limit to
P P
those 4 specific offences under Chapter III, namely Secession, Subversion,
Q Terrorist Activities and Collusion with a foreign country or with external Q
elements to endanger national security. That explains why Art 45 says
R R
unless otherwise provided by the NSL, all courts in HK, including the
S District Court, shall handle proceedings in relation to the prosecution for S
offences endangering national security in accordance with the laws of the
T T
HKSAR.
U U
V V
- 12 -
A A
B B
C 41. I am of the view that the position of the defence on this C
jurisdiction issue is inherently contradictory. If a magistrate cannot transfer
D D
sedition offences, being indictable offences, to the District Court for trial,
E then the transfer order to the District Court will not be valid. That means E
the transfer of the case from the Magistracy to the District Court would be
F F
void ab initio. If that is the case, a District Judge would not have the power
G to hear a case invalidly transferred. Then it leads to the next question: why G
should a District Judge have the power to decide whether he or she has the
H H
jurisdiction over a case invalidly transferred?
I I
42. The defence did not challenge the prosecution when the latter
J J
sought to transfer the case to the District Court for trial. If the transfer was
K not valid, the defence should take action well before the magistrate signed K
the transfer order in November 2020.
L L
M 43. For the present purpose, when the defence asks me to decide M
the issue of jurisdiction, it can be implied that the defence accepts that I do
N N
have the jurisdiction to hear the case relating to the charge sheet that
O contains sedition offences. Otherwise, the defence should have considered O
other arena to argue this jurisdiction point.
P P
Q 44. It is clear that Part III of the Second schedule to the Magistrates Q
Ordinance refer to those indictable offences, generally termed as excepted
R R
offences, and Part III does not cover s 10 sedition offence. It is because
S before the enactment of the NSL, sedition offence is a summary offence. S
That means the prosecution is entitled to transfer the summary offence to
T T
U U
V V
- 13 -
A A
B B
the District Court for trial if the conditions under s 88(1)(b) of the
C Magistrates Ordinance are met. C
D D
45. I take the view that the argument put forward by the defence,
E if accepted, would create a weird situation whereby on the one hand, the E
sedition offence was ‘transformed’ to an indictable offence, and yet the
F F
defence ‘changed’ the status of Part III of the Second Schedule by including
G sedition offence as one of the excepted offences because of the NSL. G
Inevitably, it would change the original intention and/or purpose of the
H H
Hong Kong Legislature when Part III of the Second Schedule to the
I Magistrates Ordinance was promulgated. I
J J
46. It is clear that the NSL stipulates that all cases concerning
K offence endangering national security are cases to be “tried on indictment”: K
Art 41(3). That means offences endangering national security, which
L L
include s 10 sedition offences, are indictable offences as words ‘on
M indictment’ appear in the Article. It follows that despite the fact that the M
words ‘on indictment’ do not appear in the original s 10 sedition offence
N N
provision, they can be taken as indictable offence under the NSL [to a
O certain extent, this would also have an impact on s 14A of the Criminal O
Procedure Ordinance Cap 221].
P P
Q 47. The prosecution maintains that because the words ‘on Q
indictment’ do not appear in the s 10 offence provision hence the sedition
R R
offence remains as a summary offence. In my view, the prosecution fails
S to appreciate the fact that the latest amendment to the sedition offence under S
s 10 dated back to 1970 while the NSL becomes operative only at 11 pm on
T T
30 June 2020.
U U
V V
- 14 -
A A
B B
C 48. The intention of NPCSC is clear. Art 62 of the NSL provides C
that the NSL shall prevail over the local laws in HK when inconsistency
D D
appears.
E E
49. I am of the view that when it is accepted that sedition offence
F F
is an indictable offence under the NSL, it is clear that the excepted offences
G relating to Part I and II of the Crimes Ordinance, which are taken as G
offences endangering national security, as stated in Part III of the Second
H H
Schedule to the Magistrates Ordinance cannot stand.
I I
50. As the NSL prevails over the local law, Part III of the Second
J J
Schedule will have to be ‘adapted’ to cater for offences endangering
K national security because of the enactment of the NSL. That means the K
sedition offence can still be transferred to the District Court for trial because
L L
sedition offence is no longer an excepted offence in the Second Schedule
M to the Magistrates Ordinance. M
N N
51. In my view, this approach is consistent with the spirit of and
O the general principles under Chapter I of the NSL and also s 19 of the O
Interpretation and General Clauses Ordinance Cap 1 of the Hong Kong
P P
legislation.
Q Q
52. By analogy, this approach can also have an impact on Part I of
R R
the Second Schedule to the Magistrates Ordinance relating to those offences
S that can be labelled as offences of national security. That relates to the S
power that a permanent magistrate can deal with certain indictable offences
T T
summarily, except those offences listed under Part I: s 92 of the Magistrates
U U
V V
- 15 -
A A
B B
Ordinance. Of course, this ancillary issue relating to s 92 is not relevant to
C the present application. C
D D
Conclusion
E E
53. I take a different perspective and approach in analyzing the
F F
issue of jurisdiction.
G G
54. The sedition offence, being an offence endangering national
H H
security, is an indictable offence. It is the intention of the NSL that
I indictable offences endangering national security can be heard in or handled I
by the Magistrates’ courts, the District Court, the High Court and the Court
J J
of Final Appeal: see Art 45. I rule that the excepted offences relating to
K Part I and Part II of the Crimes Ordinance as stated in Part II of the Second K
Schedule to the Magistrates Ordinance would not be valid, as it is
L L
inconsistent with the general principles and the relevant Articles of the
M NSL: Art 62. In these circumstances, it would be lawful for the magistrate M
to transfer the indictable offence under s 88(1)(a) of the Magistrates
N N
Ordinance.
O O
55. It is my ruling that the transfer of these sedition offences to the
P P
District Court was valid and the transfer was effected in accordance with
Q the NSL. In my view, my ruling can also dispose of the defence argument, Q
at least partly, relating to the sedition conspiracy charge [see para 14 to 18
R R
of the defence submission].
S S
56. To conclude, I reject the defence submission on the
T T
jurisdiction issue. I rule that those charges, the subject matter of this
U U
V V
- 16 -
A A
B B
application, are validly transferred to the District Court and I have the
C jurisdiction and powers to try these charges. C
D D
57. We will then proceed to the remaining issues so raised by the
E defence. E
F F
G G
H H
I ( Stanley Chan ) I
District Judge
J J
K K
L L
M M
N N
O O
P P
Q Q
R R
S S
T T
U U
V V
A A
B B
DCCC 927, 928 & 930/2020
(Consolidated)
C C
[2021] HKDC 424
D D
IN THE DISTRICT COURT OF THE
E E
HONG KONG SPECIAL ADMINISTRATIVE REGION
F CRIMINAL CASE NOS 927, 928 & 930 OF 2020 F
G G
--------------------------------------
H HKSAR H
v
I I
TAM TAK CHI 譚得志
J J
---------------------------------------
K K
Before: His Honour Judge Stanley Chan
L L
Date: 9 April 2021
M Present: Mr Anthony Chau, Senior Assistant Director of Public M
Prosecutions and Miss Crystal Chan, Public Prosecutor, for
N N
HKSAR
O Mr Philip Dykes, SC, leading Mr Jeffrey C K Tam & Mr Brian O
Ho Chuen Tsui, instructed by Michelle Tsoi Solicitors, for the
P P
defendant
Q Offence: [1] Incitement to knowingly take part in an unauthorized Q
assembly (煽惑他人明知而參與未經批准集結)
R R
[2], [4], [9], [10], [12], [13] & [14] Uttering seditious words (發
S S
表煽動文字)
T [3], [5] & [7] Disorderly conduct in a public place (公眾地方內 T
擾亂秩序行為)
U U
V V
-2-
A A
B B
[6] Holding or convening an unauthorized assembly (舉行或召
C 集一個未經批准集結) C
[8] Refusing or wilfully neglecting to obey an order given by an
D D
authorized officer (拒絕遵從或故意忽略遵從授權人員作出
E E
的命令)
F [11] Conspiracy to utter seditious words (串謀發表煽動文字) F
G G
--------------------
H RULING H
--------------------
I I
J Background J
K K
1. Originally the defendant applied for a stay application in
L relation to a total of 8 charges, namely 7 charges of uttering seditious words L
contrary to s 10(1)(b) of the Crimes Ordinance [CO] and one charge of
M M
conspiracy to utter seditious words. The stay application was scheduled to
N N
be heard on 31 March 2012.
O O
2. There are 6 other charges in the consolidated charge sheet
P P
[namely, Charges 1, 3, 5, 6, 7 and 8] but these charges do not relate to the
Q stay application. The consolidated charge sheet contains a total of 14 Q
charges.
R R
S S
T T
U U
V V
-3-
A A
B B
3. In a letter of 10 February 2021, defence solicitors raised
C 2 matters relating to the issue of further and better particulars of offence C
and that of election between the conspiracy charge and the substantive
D D
charges.
E E
4. For the sake of convenience and in consideration of legal costs,
F F
both parties agreed that these 3 issues, namely, the stay application, the
G issue of further and better particulars of charges and the election of charges, G
can be heard on the same day, 31 March.
H H
I 5. The defence filed their skeleton submission dated 22 March I
2021. The defence, at para 4 of the original submission, stated the grounds
J J
of the stay application as follows:-
K K
(1) the charges do not comply with the Indictment Rules
L L
Cap 221C regarding the obligation to supply particulars
M of the offences; M
N N
(2) the charges are unconstitutional as they are inconsistent
O with the Basic Law and the Hong Kong Bills of Rights. O
P P
(3) the preferment of the conspiracy charge and the transfer
Q of the case FLCC 1691/2020 amount to an abuse of Q
process or was done without jurisdiction.
R R
S S
T T
U U
V V
-4-
A A
B B
6. Further supplemental submissions by the defence were filed
C on 26 March and 30 March respectively. The theme of these supplemental C
submissions relates mainly to the issue of jurisdiction, an item which was
D D
placed under the heading ‘A point about jurisdiction’: para 5 to 13 of the
E defence’s original submission. E
F F
7. The prosecution filed their submission together with various
G authorities and legal documents on 29 March. G
H H
8. On 31 March, before submissions were made, I directed that it
I would be prudent for the defence to specify what exactly are the grounds I
for the stay application, and what are the grounds for the other issues. The
J J
written submissions made by the defence have to be amended so that all
K parties concerned can be sure what grounds are for what purpose. That is K
particularly of importance when the court is asked to deal with the stay
L L
application of certain charges.
M M
9. The principles for a stay are well established and can be found
N N
in Archbold HK 2021 Chapter 4 para 49 to 51.
O O
10. Consequent upon my direction, the defence submitted
P P
3 separate “Reformulated Skeleton Submissions’ relating to the abovesaid
Q 3 issues. Q
R R
11. Mr Dykes SC, counsel for the defendant, now submitted that
S it would be proper for him to argue the issue of jurisdiction first. S
T T
U U
V V
-5-
A A
B B
The issue of jurisdiction
C C
The position of the defence
D D
E 12. It was submitted that the District Court may not have E
jurisdiction to try and hear the seven charges of sedition charges and the
F F
sedition conspiracy charge.
G G
13. All along until the operation of the National Security Law
H H
(NSL), sedition offence is a summary offence. Mr Dykes SC submitted that
I following the CFA judgment in HKSAR v Lai Chee Ying [2021] HKCFA 3 I
[judgment handed down on 9 February 2021], the sedition offences under
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s 10(1)(b) of the Crimes Ordinance [CO] are offences endangering national
K security and the National Security Law applies. In this regard, the defence K
said that Art 41(3) of the National Security Law should apply which states
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that cases concerning endangering national security shall be tried on
M indictment. That covers sedition offence under s 10(1) of the Crimes M
Ordinance.
N N
O 14. On the premise that sedition offences are indictable offences, O
the defence argued that magistrates are not competent to try sedition
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offences because of the restrictions under Part I of the Second Schedule to
Q the Magistrates Ordinance. Q
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15. On the other hand, since sedition offences are indictable
S offences, the defence submitted that Part III of the Second Schedule to the S
Magistrates Ordinance will be invoked. The said Part III limits the power
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of transferring certain offences to the District Court. That explains why the
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defence amended para 9 of the reformulated submission by saying that “a
C permanent Magistrate cannot transfer a s 10 [offence] to the District Court.” C
It was submitted that those indictable sedition offences can only be tried in
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the Court of First Instance [see para 11 of the defence reformulated
E submission on jurisdiction]. E
F F
The position of the prosecution
G G
16. The prosecution maintained their position as stated from
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para 58 to 71 of their original submission, even though it was prepared
I before the defence’s submission was further reformulated. I
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17. The prosecution insisted that the District Court has the
K jurisdiction to try all the sedition offences. It was submitted that the K
sedition offence is a summary offence because the offence provision does
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not have words ‘upon indictment or on indictment’. The enactment of NSL
M does not change the nature of sedition offence being a summary offence: M
para 65 of the prosecution’s submission. In addition, the prosecution
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argued that the sedition offences, being summary offences, were transferred
O together with other indictable offences to the District Court, pursuant to O
section 88(1)(b) of the Magistrates Ordinance. Hence the District Court has
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the jurisdiction to try all the charges.
Q Q
18. It was further submitted that ‘tried on indictment’ under
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Art 41(3) of the NSL does not mean that the trial can only be conducted in
S the Court of First Instance as suggested by the defence: para 67 of the S
submission.
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19. The defence attacked the position of the prosecution by saying
C that “the Prosecution’s case about jurisdiction does not get to grips with the C
defendant’s argument that it is not possible to say that sedition offences are
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offences endangering national security with the meaning of the NSL and
E that they are triable in the District Court as such.” [see para 12 of the E
reformulated defence submission]. In short, the defence said the
F F
Prosecution did not address the issue raised by the defence.
G G
Consideration
H H
I 20. The Law of the People’s Republic of China on safeguarding I
national security in the Hong Kong Special Administrative Region, in short
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the National Security Law or NSL, is a new law applicable to HKSAR from
K 11 pm on 30 June 2020: see preamble 2 in the Implementation rules for Art K
43 of the NSL.
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M 21. The importance of the issue of jurisdiction, in my view, has M
been underestimated by both parties.
N N
O 22. I am of the view that this jurisdictional issue can have a far O
reaching effect, directly or indirectly, on the effect of the Second Schedule
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to the Magistrates Ordinance. To this end, this issue is more important than
Q the stay application per se. Q
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23. It is necessary for me to mention a number of Articles under
S the NSL in the first place so that my ruling can be understood in context. S
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24. Art 65 of the NSL stipulates that the power of interpretation of
C the Law shall be vested in the Standing Committee of the National People’s C
Congress [NPCSC]. Unlike the usual local legislation in Hong Kong, there
D D
is no definitions section in the NSL except a brief mention of some legal
E terms under Art 64. E
F F
25. Art 41 says the NSL and the laws of the HKSAR shall apply
G to procedural matters, including those related to criminal investigation, G
prosecution, trial and execution of penalty, in respect of cases concerning
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offence endangering national security over which the HKSAR exercises
I jurisdiction. I
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26. Art 41(3) further states that cases concerning offence
K endangering national security within the jurisdiction of the HKSAR shall K
be tried on indictment.
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M 27. Art 45 stipulates that unless otherwise provided by the NSL, M
the courts in HK shall handle proceedings in relation to the prosecution for
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offences endangering national security in accordance with the laws of the
O HKSAR. O
P P
28. Art 62 makes it clear that the NSL shall prevail where
Q provisions of the local laws of the HKSAR are inconsistent with the NSL. Q
[Note: When asked, Mr Dykes SC accepted the position, that is to say, in
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case of inconsistency, the NSL prevails.]
S S
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29. In my view, for the present purpose, it is not the function of
C this Court, nor can this Court in such a position, to provide an authoritative C
interpretation of the various Articles under the NSL. What I am trying to
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do is to make a ruling upon the issues raised by the defence for all practical
E purposes in this particular consolidated case. E
F F
30. The first issue raised by the defence is the jurisdiction of this
G court to hear those 8 charges [namely Charges 2, 4, 9, 10, 11, 12, 13 and G
14].
H H
I 31. There should be no dispute that all Articles under the NSL I
should be read in the whole context with the General Principles under
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Chapter I in mind. Obviously it is of vital importance that a purposive
K approach should be adopted. In Hong Kong, we have the Interpretation and K
General Clauses Ordinance Cap 1. Under section 19 of Cap 1, it is said,
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“All Ordinance shall be deemed to be remedial and shall receive such fair,
M large, and liberal construction and interpretation as will best ensure the M
attainment of the object of the Ordinance according to its true intent,
N N
meaning and spirit.” Naturally, I consider that this principle of
O interpretation is applicable in this case. O
P P
32. As I have mentioned, the power of interpretation of the NSL
Q is vested in NPCSC. The NSL has a much higher legal status than the local Q
laws as it is a piece of national law and Art 62 provides its overriding legal
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effects over the local laws. For instance, the criteria for granting bail has
S changed drastically vis-à-vis the principles and considerations under Part S
1A of the Criminal Procedure Ordinance Cap 221.
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33. It was submitted by the defence that under the Schedule to the
C Magistrates Ordinance Cap 227, a magistrate is not competent to try C
sedition offences under s 10 of the Crimes Ordinance Cap 200.
D D
E 34. On the other hand, the defence also argued that under s 88(1) E
of the Magistrates Ordinance, a magistrate can only transfer an indictable
F F
offence to the District Court, except those specified in Part III of the Second
G Schedule. Incidentally, sedition offences, as offences under Part II of the G
Crimes Ordinance, are included in Part III of the Second schedule.
H H
Therefore, it was submitted that a magistrate cannot transfer these s 10
I sedition offences to the District Court. As these sedition offences cannot I
be lawfully transferred to the District Court, it follows that the District
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Court has no jurisdiction to try the sedition offences.
K K
35. Hence, the defence submitted that, at para 11 of the defence
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skeleton submission on the issue of jurisdiction, “In short, the implication
M of Article 41(3) of the NSL, is that the sedition offence is an indictable M
offence only within the meaning of section 2 of MO. The upshot is that
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only the Court of First Instance can try the sedition offences that are
O indictable offences only with the meaning of section 2 MO [the Magistrates O
Ordinance].”
P P
Q 36. In short, the defence submitted that section 10 offences are Q
either to be tried on indictment only in the Court of First Instance because
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of Art 41(3) of NSL, or alternatively, if the NSL does not apply, the sedition
S offences must be tried summarily by a magistrate under Part II of S
Magistrates Ordinance, or by a District Judge upon a lawful transfer of the
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case to the District Court [para 13 of the defence submission].
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C 37. It is my view that broadly speaking, the NSL is promulgated C
to tackle those issues laid down under Chapter 1 of the NSL. This national
D D
law does not act as a piece of legislation to reconcile all the local legislations
E in Hong Kong. Hence Art 62 provides the NSL with a special status to E
prevail over the local laws if inconsistency between the NSL and local laws
F F
appears.
G G
38. On the other hand, Art 41(3) states that cases concerning
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offence endangering national security with the jurisdiction of the HKSAR
I shall be tried on indictment. Art 45 states that courts in Hong Kong shall I
handle proceedings in relation to the prosecution for offences endangering
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national security in accordance with the laws of the HKSAR.
K K
39. The defence does not argue that sedition offences under s 10
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are not offences endangering national security. The defence accepts that.
M M
40. In my view, if sedition offences are offences endangering
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national security, it would be absurd that the NPCSC would ‘exclude’ these
O s 10 offences from being tried in the District Court. In accordance with the O
NSL, it is clear that offences endangering national security do not limit to
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those 4 specific offences under Chapter III, namely Secession, Subversion,
Q Terrorist Activities and Collusion with a foreign country or with external Q
elements to endanger national security. That explains why Art 45 says
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unless otherwise provided by the NSL, all courts in HK, including the
S District Court, shall handle proceedings in relation to the prosecution for S
offences endangering national security in accordance with the laws of the
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HKSAR.
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C 41. I am of the view that the position of the defence on this C
jurisdiction issue is inherently contradictory. If a magistrate cannot transfer
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sedition offences, being indictable offences, to the District Court for trial,
E then the transfer order to the District Court will not be valid. That means E
the transfer of the case from the Magistracy to the District Court would be
F F
void ab initio. If that is the case, a District Judge would not have the power
G to hear a case invalidly transferred. Then it leads to the next question: why G
should a District Judge have the power to decide whether he or she has the
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jurisdiction over a case invalidly transferred?
I I
42. The defence did not challenge the prosecution when the latter
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sought to transfer the case to the District Court for trial. If the transfer was
K not valid, the defence should take action well before the magistrate signed K
the transfer order in November 2020.
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M 43. For the present purpose, when the defence asks me to decide M
the issue of jurisdiction, it can be implied that the defence accepts that I do
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have the jurisdiction to hear the case relating to the charge sheet that
O contains sedition offences. Otherwise, the defence should have considered O
other arena to argue this jurisdiction point.
P P
Q 44. It is clear that Part III of the Second schedule to the Magistrates Q
Ordinance refer to those indictable offences, generally termed as excepted
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offences, and Part III does not cover s 10 sedition offence. It is because
S before the enactment of the NSL, sedition offence is a summary offence. S
That means the prosecution is entitled to transfer the summary offence to
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the District Court for trial if the conditions under s 88(1)(b) of the
C Magistrates Ordinance are met. C
D D
45. I take the view that the argument put forward by the defence,
E if accepted, would create a weird situation whereby on the one hand, the E
sedition offence was ‘transformed’ to an indictable offence, and yet the
F F
defence ‘changed’ the status of Part III of the Second Schedule by including
G sedition offence as one of the excepted offences because of the NSL. G
Inevitably, it would change the original intention and/or purpose of the
H H
Hong Kong Legislature when Part III of the Second Schedule to the
I Magistrates Ordinance was promulgated. I
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46. It is clear that the NSL stipulates that all cases concerning
K offence endangering national security are cases to be “tried on indictment”: K
Art 41(3). That means offences endangering national security, which
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include s 10 sedition offences, are indictable offences as words ‘on
M indictment’ appear in the Article. It follows that despite the fact that the M
words ‘on indictment’ do not appear in the original s 10 sedition offence
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provision, they can be taken as indictable offence under the NSL [to a
O certain extent, this would also have an impact on s 14A of the Criminal O
Procedure Ordinance Cap 221].
P P
Q 47. The prosecution maintains that because the words ‘on Q
indictment’ do not appear in the s 10 offence provision hence the sedition
R R
offence remains as a summary offence. In my view, the prosecution fails
S to appreciate the fact that the latest amendment to the sedition offence under S
s 10 dated back to 1970 while the NSL becomes operative only at 11 pm on
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30 June 2020.
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B B
C 48. The intention of NPCSC is clear. Art 62 of the NSL provides C
that the NSL shall prevail over the local laws in HK when inconsistency
D D
appears.
E E
49. I am of the view that when it is accepted that sedition offence
F F
is an indictable offence under the NSL, it is clear that the excepted offences
G relating to Part I and II of the Crimes Ordinance, which are taken as G
offences endangering national security, as stated in Part III of the Second
H H
Schedule to the Magistrates Ordinance cannot stand.
I I
50. As the NSL prevails over the local law, Part III of the Second
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Schedule will have to be ‘adapted’ to cater for offences endangering
K national security because of the enactment of the NSL. That means the K
sedition offence can still be transferred to the District Court for trial because
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sedition offence is no longer an excepted offence in the Second Schedule
M to the Magistrates Ordinance. M
N N
51. In my view, this approach is consistent with the spirit of and
O the general principles under Chapter I of the NSL and also s 19 of the O
Interpretation and General Clauses Ordinance Cap 1 of the Hong Kong
P P
legislation.
Q Q
52. By analogy, this approach can also have an impact on Part I of
R R
the Second Schedule to the Magistrates Ordinance relating to those offences
S that can be labelled as offences of national security. That relates to the S
power that a permanent magistrate can deal with certain indictable offences
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summarily, except those offences listed under Part I: s 92 of the Magistrates
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Ordinance. Of course, this ancillary issue relating to s 92 is not relevant to
C the present application. C
D D
Conclusion
E E
53. I take a different perspective and approach in analyzing the
F F
issue of jurisdiction.
G G
54. The sedition offence, being an offence endangering national
H H
security, is an indictable offence. It is the intention of the NSL that
I indictable offences endangering national security can be heard in or handled I
by the Magistrates’ courts, the District Court, the High Court and the Court
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of Final Appeal: see Art 45. I rule that the excepted offences relating to
K Part I and Part II of the Crimes Ordinance as stated in Part II of the Second K
Schedule to the Magistrates Ordinance would not be valid, as it is
L L
inconsistent with the general principles and the relevant Articles of the
M NSL: Art 62. In these circumstances, it would be lawful for the magistrate M
to transfer the indictable offence under s 88(1)(a) of the Magistrates
N N
Ordinance.
O O
55. It is my ruling that the transfer of these sedition offences to the
P P
District Court was valid and the transfer was effected in accordance with
Q the NSL. In my view, my ruling can also dispose of the defence argument, Q
at least partly, relating to the sedition conspiracy charge [see para 14 to 18
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of the defence submission].
S S
56. To conclude, I reject the defence submission on the
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jurisdiction issue. I rule that those charges, the subject matter of this
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application, are validly transferred to the District Court and I have the
C jurisdiction and powers to try these charges. C
D D
57. We will then proceed to the remaining issues so raised by the
E defence. E
F F
G G
H H
I ( Stanley Chan ) I
District Judge
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K K
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M M
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O O
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