HKSAR v Ng Gordon Ching-hang and others

Reasons for Verdict

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

HIGH COURT CRIMINAL CASE NO. 69 OF 2022

_________________

BETWEEN HKSAR and

[D5] NG Gordon Ching-hang (吳政亨) [D8] CHENG Tat-hung (鄭達鴻) [D10] YEUNG Suet-ying Clarisse (楊雪盈) [D11] PANG Cheuk-kei (彭卓棋) [D14] HO Kai-ming Kalvin (何啟明) [D16] LAU Wai-chung (劉偉聰) [D17] WONG Pik-wan (黃碧雲) [D24] SZE Tak-loy (施德來) [D33] HO Kwai-lam (何桂藍) [D36] CHAN Chi-chuen Raymond (陳志全) [D37] CHOW Ka-shing (鄒家成) [D38] LAM Cheuk-ting (林卓廷) [D41] LEUNG Kwok-hung (梁國雄) [D43] OR Yiu-lam Ricky (柯耀林) [D46] LEE Yue-shun (李予信) [D47] YU Wai-ming Winnie (余慧明) _________________

Before: Hon Andrew Chan J, Hon Alex Lee J and Hon Johnny Chan J in Court Dates of Hearing: 6 February 2023 to 27 February 2023, 1 March 2023 to 3 March 2023, 6 March 2023, 8 March 2023 to 10 March 2023, 14 March 2023 to 20 March 2023, 22 March 2023 to 26 April 2023, 4 May 2023 to 10 May 2023, 15 May 2023, 16 May 2023, 29 May 2023, 31 May 2023 to 2 June 2023, 8 June 2023 to 12 June 2023, 14 June 2023, 29 June 2023, 3 July 2023 to 13 July 2023, 18 July 2023 to 28 August 2023, 29 November 2023, 30 November 2023 & 4 December 2023 Date of Reasons for Verdict: 30 May 2024

Table of Contents

Background

Legal Issues

Ejusdem Generis

Unlawful means

Unlawfulness as an External Element

Subverting the State Power

Unlawfulness and Abuse of Power

Conspiracy and Its Elements

The Scheme

Impossibility

The Prosecution Evidence

The Defence Evidence

Factual Issues

Determination of Factual Issues

Inception of the Conspiracy

Engagement of Power for Democracy in Project 35+

Promotion of Project 35+ by D1

PW1’s knowledge on Project 35+

PW1’s Participation in Coordination Meetings

Project 35+ Document

The Holding of Coordination Meetings

Coordination Agreement

Press Conference on 9 June 2020

The Inked without Regret Declaration (IWR declaration)

Nomination Form and the Deposit Receipt

Election Forums

Press Conference on 6 and 9 July 2020

Participation in the Primary Election

Post Election Press Conference

Press Conference by the Resistance Camp on 15 July 2020

The Postponement of the LegCo Election

Hong Kong Island

D8 Cheng Tat-hung

D10 Yeung Suet-ying Clarisse

D11 Pang Cheuk-kei

Kowloon West

D14 Ho Kai-ming Kalvin

D16 Lau Wai-chung

D17 Wong Pik-wan

Kowloon East

D24 Sze Tak-loy

New Territories East

D33 Ho Kwai-lam

D36 Chan Chi-chuen Raymond

D37 Chow Ka-shing

D38 Lam Cheuk-ting

D41 Leung Kwok-hung

D43 Or Yiu-lam Ricky

District Council (Second)

D46 Lee Yue-shun

Health Services

D47 Yu Wai-ming Winnie

D5 Ng Gordon Ching-hang

Summary of the Outcome

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R E A S O N S F O R V E R D I C T[1]

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Background

1. The 5th, 8th, 10th, 11th, 14th, 16th, 17th, 24th, 33rd, 36th, 37th, 38th, 41st, 43rd, 46th and 47th defendants were charged together with 31 other defendants who had pleaded guilty with one count of Conspiracy to Commit Subversion, contrary to Article 22(3) of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region ( “NSL 22(3)” ) and Sections 159A and 159C of the Crimes Ordinance, Cap 200.

2. The Particulars of Offence alleged that the 47 defendants, between 1 July 2020 and 7 January 2021 in Hong Kong, conspired together and with other persons, with a view to subverting the State power, to organise, plan, commit or participate in, by unlawful means namely:

(i) advocating, engaging or participating in a scheme with a view to abusing his or her powers and functions entrusted under Article 73 of the Basic Law of the Hong Kong Special Administrative Region (“HKSAR”) of the People’s Republic of China (“BL 73”) after being elected to be a member (“Member”) of the Legislative Council (“LegCo”) for the purposes of:-

(a) obtaining a controlling majority in the LegCo to indiscriminately refuse to pass any budgets or public expenditure to be introduced by HKSAR Government (“the Government”) regardless of their contents or the merits of their contents;

(b) compelling the Chief Executive of HKSAR (“the Chief Executive”) to dissolve the LegCo under Article 50 of the Basic Law (“BL 50”) so as to paralyse the operations of the Governemnt;

(c) ultimately causing the Chief Executive to resign under Article 52 of the Basic Law (“BL 52”) entailed by the dissolution of the LegCo and the refusal to pass the original budget by the new LegCo;

(“the Scheme”)

(ii) with a view to carrying out the Scheme, to stand or not to stand as candidates in the LegCo election (the “Election”), and / or inciting, procuring, inducing or causing others to stand or not to stand as candidates in the Election;

(iii) undertaking or agreeing, and / or inciting, procuring, inducing or causing others to undertake or agree to exercise or forbear to exercise his or her powers and functions under BL 73 after being elected as a LegCo Member when examining and approving budgets or public expenditure to be introduced by the Government in accordance with the Scheme;

(iv) undertaking or agreeing, and / or inciting, procuring, inducing or causing others to undertake or agree, to willfully or intentionally fail or neglect to discharge his or her duties of a LegCo Member after being elected in the Election, that is, to uphold the Basic Law, bear allegiance to HKSAR of the People’s Republic of China and serve HKSAR conscientiously, dutifully, in full accordance with the Law, honestly and with integrity;

seriously interfering in, disrupting or undermining the performance of duties and functions in accordance with the law by the body of power of HKSAR. (the “Charge”)

3. Essentially, the prosecution case was that between 1 July 2020 and 7 January 2021, the 16 defendants together with other persons came to an agreement to participate in the Scheme so as to seriously interfering in, disrupting or undermining the performance of duties and functions in accordance with the law by the body of power of the HKSAR by unlawful means with a view to subverting the State power. This was the term of the conspiracy.

4. It was alleged by the prosecution that the 16 defendants together with others agreed to pursue a course of conduct which was to indiscriminately veto any budgets or refuse to pass any budgets or public expenditure to be introduced by the Government regardless of the merits or the contents, in the event that they were elected to be LegCo Members and after obtaining a majority in the upcoming 2020 LegCo election with the intention of compelling the Chief Executive to respond to the “Five Demands Not One Less” demand (the Five Demands) and in the case that the Chief Executive refused to do so, she would have to dissolve the LegCo under BL 50 and ultimately resign under BL 52. This was essentially the overt act as stipulated in sub-paragraph (i) of the Particulars of Offence.

5. The prosecution accepted that they had to prove beyond reasonable doubt the term of the conspiracy and the overt act stipulated in sub-paragraph (i) of the Particulars of Offence. The prosecution further alleged that the agreement was reached by the 16 defendants together with others before the promulgation of the NSL on 30 June 2020. They asserted that the said agreement became unlawful after the NSL came into effect but the 16 defendants continued to pursue that course.

6. The 2020 LegCo election was postponed due to the COVID pandemic. It was alleged by the prosecution that had the Scheme been carried out, that would paralyse the operation of the Government and inevitably create political instability in Hong Kong leading to constitutional crisis for HKSAR.

Legal Issues

7. A number of legal challenges were made by the defence as regards the elements of the offence under NSL 22. NSL 22 stated as follows:

“ Article 22 A person who organises, plans, commits or participates in any of the following acts by force or threat of force or other unlawful means with a view to subverting the State power shall be guilty of an offence:

(1) overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China;

(2) overthrowing the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region;

(3) seriously interfering in, disrupting, or undermining the performance of duties and functions in accordance with the law by the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region; or

(4) attacking or damaging the premises and facilities used by the body of power of the Hong Kong Special Administrative Region to perform its duties and functions, rendering it incapable of performing its normal duties and functions.

A person who is a principal offender or a person who commits an offence of a grave nature shall be sentenced to life imprisonment or fixed-term imprisonment of not less than ten years; a person who actively participates in the offence shall be sentenced to fixed-term imprisonment of not less than three years but not more than ten years; and other participants shall be sentenced to fixed-term imprisonment of not more than three years, short-term detention or restriction.”

「 第二十二條 任何人組織、策劃、實施或者參與實施以下以武力、威脅使用武力或者其他非法手段旨在顛覆國家政權行為之一的，即屬犯罪：

(一) 推翻、破壞中華人民共和國憲法所確立的中華人民共和國根本制度；

(二) 推翻中華人民共和國中央政權機關或者香港特別行政區政權機關；

(三) 嚴重干擾、阻撓、破壞中華人民共和國中央政權機關或者香港特別行政區政權機關依法履行職能；

(四) 攻擊、破壞香港特別行政區政權機關履職場所及其設施，致使其無法正常履行職能。

犯前款罪，對首要分子或者罪行重大的，處無期徒刑或者十年以上有期徒刑；對積極參加的，處三年以上十年以下有期徒刑；對其他參加的，處三年以下有期徒刑、拘役或者管制。」

8. We were fully aware that the charge was one of conspiracy. However given this was the first case which the offence of subversion was brought, we thought it appropriate to state first what the elements of the offence were and had to be proven by the prosecution.

9. In the context of the present case, the elements of the substantive offence under NSL 22(3) were:

(i) organised, planned, committed or participated in;

(ii) any act by the use of force or threat of use of force or other unlawful means;

(iii) which seriously interfered in, disrupted or undermined the performance of duties and functions in accordance with the law by the body of power of the HKSAR;

(iv) with a view to subverting the State power.

10. As regards the above, we were of the view that: element (i) was part of the actus reus of the offence; element (ii) related to the nature of the means adopted by the defendants; element (iii) related to the nature of the overt act and its consequence. This, together with element (i), constituted the actus reus of the offence. Furthermore, we were of the view that the actus reus had to be intentional so that any lesser forms of mens rea (for example recklessness and negligence) would not be sufficient; and element (iv) was an additional mental element which made the offence one of “specific intent”.

11. In the present case, there was no allegation by the prosecution that the alleged conspiratorial agreement which was the subject matter of the charge entailed any acts by force or threat of force. Therefore, in simple terms that part of NSL 22 relied upon by the prosecution was that any person who participated in any act which would be seriously interfering in, disrupting or undermining the performance of duties and functions in accordance with the law by the body of power of the HKSAR by “other unlawful means” with a view to subverting the State power should be guilty of the offence.

Ejusdem Generis

12. The first challenge posed by the defence centered on the scope of NSL 22(3) was the applicability of the ejusdem generis rule to the interpretation of “other unlawful means” (其他非法手段). Essentially, it was submitted by the defence that the expression “other unlawful means” should be confined to unlawful means with the use of force or the threat of force under that rule.

13. The ejusdem generis principle is summarised in Bennion, Bailey and Norbury on Statutory Interpretation (8th edition). It is essentially a principle of construction whereby wide words associated in the text with more limited words are taken to be restricted by implication to matter of the same limited character. It is mentioned in the comments under section 23.8 that this common law ejusdem generis principle can be displaced by the mischief the legislation aimed at:-

“Implied exclusion

In some cases the context or other interpretative criteria will be sufficient to displace the ejusdem generis principle

Example

By the Local Government Act 1933, s76 (1), a member of a local authority was required to disclose their interest and refrain from voting where they had ‘any pecuniary interest, direct or indirect, in any contract or proposed contract or other matter’ (emphasis added) . Lord Parker CJ held that the mischief at which the enactment was directed required the italicised phrase to be given its unrestricted meaning. He said:

‘whereas, of course, a consideration of the mischief aimed at does not enable the court to construe the words in a wider sense than they appear, it at least means that the court would not be acute to cut down words otherwise wide merely because this was a penal statue.’”

14. The case in which Lord Parker CJ made the statement cited above was Rands v Oldroyd [2]. Despite not having any specific contract or proposed contract with the local authority, a member who was a director of a company which could have made a contract tender was charged and convicted. Rejecting an argument that the words “or other matter” should be restricted to a specific transaction by reason of ejusdem generis, Lord Parker CJ further stated that:

‘Bearing in mind the mischief aimed at by this Act, I do not think those words are to be read in other than a very general way, and I see no ground for introducing a limitation which, as I said, is one which cannot satisfactorily be defined.”

15. The same proposition could be found in HKSAR v Luk Kin Peter Joseph & Another[3]where the Court of Appeal stated:

“However, if, after having regard to context and purpose, it is decided that the legislature intended the words to bear an unrestricted meaning then the ejusdem generis principle simply has no application.”

16. Therefore, the issue before this Court was whether the application of the ejusdem generis rule was displaced by the purposive interpretation of the relevant articles in the NSL, there being no dispute that it was by the common law approach that the Court was to deal with the construction of the NSL: Director of Immigration v Chong Fung Yuen[4]; and HKSAR v Lui Sai Yu[5].

17. The general common law approach on statutory interpretation was summarised in the recent case of HKSAR v Chan Chun Kit[6]. In particular, it was held in HKSAR v Lai Chee Ying[7] that the NSL should be construed in light of its ordinary meaning, purpose and context. In so doing, regard could be made to the Explanations[8] and Decisions[9] made in proceedings of the National People’s Congress (“NPC”) and the National People’s Congress Standing Committee (“NPCSC”) regarding promulgation of the NSL as a law of the HKSAR, as extrinsic materials relevant to the consideration of the context and purpose of the NSL.

18. Applying the above to the present case, we noted first the primary purpose of the NSL was to safeguard national security. NSL 1 stated as follows:

“ Article 1 This Law is enacted, in accordance with the Constitution of the People’s Republic of China, the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China, and the Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region, for the purpose of:

• ensuring the resolute, full and faithful implementation of the policy of One Country, Two Systems under which the people of Hong Kong administer Hong Kong with a high degree of autonomy;

• safeguarding national security;

• preventing, suppressing and imposing punishment for the offences of secession, subversion, organisation and perpetration of terrorist activities, and collusion with a foreign country or with external elements to endanger national security in relation to the Hong Kong Special Administrative Region;

• maintaining prosperity and stability of the Hong Kong Special Administrative Region; and

• protecting the lawful rights and interests of the residents of the Hong Kong Special Administrative Region”

「 第一條 為堅定不移並全面準確貫徹“一國兩制”、“港人治港”、高度自治的方針，維護國家安全，防範、制止和懲治與香港特別行政區有關的分裂國家、顛覆國家政權、組織實施恐怖活動和勾結外國或者境外勢力危害國家安全等犯罪，保持香港特別行政區的繁榮和穩定，保障香港特別行政區居民的合法權益，根據中華人民共和國憲法、中華人民共和國香港特別行政區基本法和全國人民代表大會關於建立健全香港特別行政區維護國家安全的法律制度和執行機制的決定，制定本法。」

NSL 1 mentioned, in particular, the NSL was enacted in accordance with the Decision of the National People’s Congress on Establishing and Improving the Legal System and Enforcement Mechanisms for Safeguarding National Security in the Hong Kong Special Administrative Region adopted on the 28 May 2020.

19. NSL 3 and 6 placed the responsibility in safeguarding national security on residents as well as government organisations of the HKSAR:

“ Article 3 The Central People’s Government has an overarching responsibility for national security affairs relating to the Hong Kong Special Administrative Region.

It is the duty of the Hong Kong Special Administrative Region under the Constitution to safeguard national security and the Region shall perform the duty accordingly.

The executive authorities, legislature and judiciary of the Region shall effectively prevent, suppress and impose punishment for any act or activity endangering national security in accordance with this Law and other relevant laws.”

「 第三條 中央人民政府對香港特別行政區有關的國家安全事務負有根本責任。

香港特別行政區負有維護國家安全的憲制責任，應當履行維護國家安全的職責。

香港特別行政區行政機關、立法機關、司法機關應當依據本法和其他有關法律規定有效防範、制止和懲治危害國家安全的行為和活動。」

“ Article 6 It is the common responsibility of all the people of China, including the people of Hong Kong, to safeguard the sovereignty, unification and territorial integrity of the People’s Republic of China.

Any institution, organisation or individual in the Hong Kong Special Administrative Region shall abide by this Law and the laws of the Region in relation to the safeguarding of national security, and shall not engage in any act or activity which endangers national security.

A resident of the Region who stands for election or assumes public office shall confirm in writing or take an oath to uphold the Basic Law of the Hong Kong Special Administrative Region of the People’s Republic of China and swear allegiance to the Hong Kong Special Administrative Region of the People’s Republic of China in accordance with the law.”

「 第六條 維護國家主權、統一和領土完整是包括香港同胞在內的全中國人民的共同義務。

在香港特別行政區的任何機構、組織和個人都應當遵守本法和香港特別行政區有關維護國家安全的其他法律，不得從事危害國家安全的行為和活動。

香港特別行政區居民在參選或者就任公職時應當依法簽署文件確認或者宣誓擁護中華人民共和國香港特別行政區基本法，效忠中華人民共和國香港特別行政區。」

20. One of the means adopted in safeguarding national security was the enactment of the offence of subversion. NSL 22, being the provision establishing the offence, was clearly aimed at preventing and suppressing subversion, the mischief behind.

21. The Explanation referred to in the case of Lai Chee Ying listed out various activities, such as advocating the notion of “Hong Kong independence”, “self-determination” and “referendum” and paralysing governance by the government and operation of the legislature that took place in Hong Kong in 2019 which caused concerns to the Central People’s Government and led to the enactment of the NSL. In the judgment of the case, the Court of Final Appeal stated:

“11. The reference to the abovementioned Decision of the National People’s Congress (“NPC”) is to its Decision dated 28 May 2020 (which has been referred to as “the 5.28 Decision”) forming part of the process of formulating and applying the NSL to the HKSAR. Given the special status of the NSL as a national law applied under Article 18 of the Basic Law (as will be discussed) and given the express reference in NSL 1 to that process, regard may properly be had to the Explanations and Decisions made in proceedings of the NPC and the NPC Standing Committee (“NPCSC”) regarding promulgation of the NSL as a law of the HKSAR as extrinsic materials relevant to consideration of the context and purpose of the NSL.

12. The process started with the Explanation of a Draft Decision (which was subsequently to become the “5.28 Decision”) presented to the NPC on 22 May 2020. The Explanation began by identifying the concerns of the Central Authorities in the light of recent events in Hong Kong:

‘At present, the increasingly notable national security risks in the HKSAR have become a prominent problem. In particular, since the onset of Hong Kong’s “legislative amendment turmoil” in 2019, anti-China forces seeking to disrupt Hong Kong have blatantly advocated such notions as “Hong Kong independence”, “self-determination” and “referendum”, and engaged in activities to undermine national unity and split the country. They have brazenly desecrated and defiled the national flag and emblem, incited Hong Kong people to oppose China and the Communist Party of China (“CPC”), besiege Central People’s Government (“CPG”) offices in Hong Kong, and discriminate and ostracize Mainland personnel in Hong Kong. These forces have also willfully disrupted social order in Hong Kong, violently resisted police enforcement of the law, damaged public facilities and property, and paralysed governance by the government and operation of the legislature. Moreover in recent years, certain foreign or external forces have flagrantly interfered in Hong Kong’s affairs. They have made intervention and created disturbances in various ways, such as by legislative and administrative means and through non-governmental organisations. In collusion with those anti-China Hong Kong disrupters, these forces of the same ilk backed and cheered on the disrupters and provided a protective umbrella, and utilized Hong Kong to carry out activities endangering national security. These acts and activities have seriously challenged the bottom line of the “One Country, Two systems” principle, seriously undermined the rule of law, and seriously jeopardized national sovereignty, security and development interests.’” (emphasis added)

22. As stated in the Explanation above, the NSL was enacted in full awareness that national security in Hong Kong could be undermined by non-violent acts such as advocating for Hong Kong independence and self-determination, desecrating national flag and emblem, inciting public hatred and paralysing governance by the government and operation of the legislature. In this regard, we noted that in the recent judgment in HKSAR v Tam Tak Chi[10], Poon CJHC who gave the judgment of the Court of Appeal, had the following to say:

“Modern experiences show the seditious acts or activities endangering national security now take many diversified forms. Some involve violence or threat of violence. Some involve non-violent means but can be equally damaging. There is no valid basis for criminalising the former but not the latter.”

23. One example of non-violent means given by the Court of Appeal was “malicious dissemination of misinformation”[11]. Whilst we were fully alive that the above-quoted was said in the context of “sedition” acts prohibited by the Crimes Ordinance Cap 200, it could be equally true for other activities which endangered national security. Bearing in mind that the NSL was enacted to “prevent, suppress and punish” conducts and activities which endangered national security, we could not see any reason why the NPC would have so narrowly restricted “other unlawful means” in NSL 22 to acts which would entail the use of “force or threat of force”.

24. After stating the necessity and importance of establishing and improving the legal system and enforcement mechanisms for the HKSAR to safeguard national security at national level, the Explanation went on to state the general requirements and basic principles (總體要求及基本原則):

“ In conformity with the above general requirements, the following basic principles must be observed and well grasped.

The first is resolutely safeguarding national security. Safeguarding national security is the requisite for the State’s enduring governance and lasting peace, and for Hong Kong’s long-term prosperity and stability. It is the common responsibility of all the people of China including the people of Hong Kong, as well as the joint responsibility of the State and the HKSAR. Any activities which endanger national sovereignty and security, challenge the power of the Central Authorities and the authority of the Hong Kong Basic Law, and use Hong Kong to infiltrate and sabotage Mainland China touch on our bottom line and are never allowed.” (emphasis added) (unofficial translation)

贯彻上述总体要求，必须遵循和把握好以下基本原则。

「一是坚决维护国家安全。维护国家安全是保证国家长治久安、保持香港长期繁荣稳定的必然要求，是包括香港同胞在内的全中国人民的共同义务，是国家和香港特别行政区的共同责任。任何危害国家主权安全、挑战中央权力和香港基本法权威、利用香港对内地进行渗透破坏的活动，都是对底线的触碰，都是绝不能允许的。」(emphasis added) (Original text in simplified Chinese characters)

25. Secondly, the defence submission was inconsistent with the “5.28 Decision”. The Decision stated:

“6. The National People’s Congress Standing Committee is entrusted to formulate relevant laws on establishing and improving the legal system and enforcement mechanisms for the Hong Kong Special Administrative Region to safeguard national security, in order to effectively prevent, stop and punish acts and activities to split the country, subvert state power, organise and carry out terrorist activities and other behaviors that seriously endanger national security, as well as activities of foreign or external forces interfering in the affairs of the Hong Kong Special Administrative Region…” (unofficial translation)

「六、授权全国人民代表大会常务委员会就建立健全香港特别行政区维护国家安全的法律制度和执行机制制定相关法律，切实防范、制止和惩治任何分裂国家、颠覆国家政权、组织实施恐怖活动等严重危害国家安全的行为和活动以及外国和境外势力干预香港特别行政区事务的活动。...」(emphasis added) (Original text in simplified Chinese characters)

The phrase used in Chinese was “任何分裂國家、顛覆國家政權、組織實施恐怖活動等嚴重危害國家安全的行為和活動”. We noted the use of “任何” was not translated in the text of the unofficial translation.

26. In our judgment, the fact that the Explanation and Decision referred to “any” activities, not simply activities relating to the use of force or threat of force reinforced our view that a narrow interpretation of “other unlawful means” put forward by the defence would be contrary to the legislative purpose of the NSL.

27. It would not be difficult to anticipate that the operation of the legislature could be paralysed by a variety of ways and in different forms and methods other than the use of force or threat of force. The operation of the LegCo could come to a complete halt because of, for example, a cyber-attack on its infrastructure such as its information technology system, communication system or power supply system. Members and staff of the LegCo could also be subjected to attack by biological, chemical and radioactive agents.

28. Thirdly, the defence’s interpretation was also inconsistent with the wording of NSL 22 in that a careful examination of the prohibited acts listed out in its sub-paragraphs (1)-(4) showed that not all of them would necessarily involve the use of “force or threat of force”.

29. Sub-paragraph (1) prohibited any undermining of the basic system of the People’s Republic of China as established by its constitution, whilst sub-paragraph (3) prohibited any serious interference in the performance of the legal duties and functions of the HKSAR. Neither of them would necessarily involve the use or the threat of use of force.

30. Sub-paragraph (4) prohibited the attacking or damaging of premises and facilities used by the HKSAR in performing its normal duties and functions. Looking at NSL 22(3) from another perspective, if the defence were correct in suggesting that the “other unlawful means” should be confined to a narrower meaning, it followed logically that any attack on or damage caused to government facilities as envisaged in NSL 22(4) by non-violent means such as setting fire, flooding, dissemination of toxic gases or dispersal of biological pathogens would not be a breach and the perpetrators would go unpunished under the NSL even if the effects and consequences would be the same, if not more serious and widespread.

31. For the purpose of completeness, we had considered whether the use of toxic gases or biological pathogens in the attack of government facilities might fall within NSL 24, so that there would not be a lacuna. NSL 24 provided as follows:

“A person who organises, plans, commits, participates in or threatens to commit any of the following terrorist activities causing or intended to cause grave harm to the society with a view to coercing the Central People’s Government, the Government of the Hong Kong Special Administrative Region or an international organisation or intimidating the public in order to pursue political agenda shall be guilty of an offence:

(1) serious violence against a person or persons;

(2) explosion, arson, or dissemination of poisonous or radioactive substances, pathogens of infectious diseases or other substances;

(3) sabotage of means of transport, transport facilities, electric power or gas facilities, or other combustible or explosible facilities;

(4) serious interruption or sabotage of electronic control systems for providing and managing public services such as water, electric power, gas, transport, telecommunications and the internet; or

(5) other dangerous activities which seriously jeopardise public health, safety or security.”

「為脅迫中央人民政府、香港特別行政區政府或者國際組織或者威嚇公眾以圖實現政治主張，組織、策劃、實施、參與實施或者威脅實施以下造成或者意圖造成嚴重社會危害的恐怖活動之一的，即屬犯罪：

(一) 針對人的嚴重暴力；

(二) 爆炸、縱火或者投放毒害性、放射性、傳染病病原體等物質；

(三) 破壞交通工具、交通設施、電力設備、燃氣設備或者其他易燃易爆設備；

(四) 嚴重干擾、破壞水、電、燃氣、交通、通訊、網絡等公共服務和管理的電子控制系統；

(五) 以其他危險方法嚴重危害公眾健康或者安全。」

32. In our judgment, NSL 22 served a very different purpose than that of NSL 24 in that the latter aimed at prohibiting “terrorist activities” causing or intended to cause grave harm to the society “with a view to coercing the Government” in order to pursue political agenda, whereas NSL 22 aimed at protecting the People’s Republic of China or the HKSAR in respect of: the basic system as established by the Constitution; the body of central power (sub-paragraph 1 and 2); the performance of legal duties and functions (sub-paragraph 3); and the performance of normal duties and functions (sub-paragraph 4).

33. Unless one were to stretch the meaning of “force or threat of force” in NSL 22 to the breaking point, the defence interpretation would produce a lacuna in the law and an absurdity which unduly limited the scope and hence reduced the effectiveness of the NSL as a means to protect national security. That would not be conducive to the legislative purpose of the NSL: cf Lai Chee Ying v Commissioner of the Police[12].

34. Last but not least, we noted that whilst the phrase “whether or not by force or threat of force” (不論是否使用武力或者以武力相威脅) appeared in NSL 20 (Secession), sub-paragraph (2) of that article specifically referred to “altering by unlawful means the legal status of the Hong Kong Special Administrative Region or of any other part of the People’s Republic of China” (非法改變香港特別行政區或者中華人民共和國其他任何部分的法律地位) as a prohibited act. Therefore, it was clear that when the phrase “unlawful” or “unlawful means” was used, the NPC did not intend it to be restricted to acts involving the use of force or the threat of force. Therefore, we did not consider that NSL 20 could lend support to the defence submission.

35. In conclusion, we came to the view that the mischief rule required NSL 22(3) to be construed to cover acts not just by the use of force or the threat of force, but also other unlawful means. Limiting NSL 22 only to acts and activities by the use of force or the threat of force would be absurd and illogical and defeat the purpose of the NSL. It should be noted that the other means employed would still have to be an unlawful one, not just any means.