In the last two years, the sweeping offence of seditious publication that was enacted almost a hundred years ago in the colonial times, and that has fallen into disuse for almost half a century, was brought back to life in Hong Kong. While an archaic offence does not by itself mean that it is bad law, it does call for intense judicial scrutiny, especially when personal liberty is at stake, when history bears witness on how this offence has been influenced by the prevailing political climate and been used to stifle and suppress political dissent, and when a similar offence has been either repealed or narrowed down in modern times in many parts of the common law world. Sadly, such intense judicial scrutiny is absent in Hong Kong. LaiMan-ling is one of the latest convictions of this offence.
The court then went on to reject the contention that a seditious intention must also include “an intention to incite persons to violence or to create public disturbance or disorder for the purpose of disturbing constituted authority”. It also rejected the argument that the offence of seditious publication was an unconstitutional infringement of the right to freedom of expression. These two issues would be further discussed below.
At this point the court turned to the fact and found the existence of seditious intention. A glaring omission is the failure of the court to define what constitutes “disaffection”, “discontent”, “hatred” or “contempt”. The court correctly held that there would be no seditious intention if one of the exceptions in section 9(2) was established, such as an intention to show that the Central Authorities or the HKSAR Government was mistaken in any of their measures, or to point out errors or defects in the government or in legislation or in the administration of justice with a view to remedying such errors or defects. However, the court stopped there. It does not follow that there is seditious intention if one of the exceptions in section 9(2) has not been established. It begs the question of what constitutes seditious intention.
Secondly, any criticism against the state could not amount to “disaffection”, “discontent”, “hatred” or contempt” unless they give rise to a real risk that national security is threatened or compromised. It is not the emotion per se, but the harm created by such emotion that justifies criminal sanction. The harm should not be theoretical. Freedom of expression includes not only speeches that are civilised and rational, but also speeches that are politically incorrect, shocking or even offensive. Hence, the key has to be a real risk of threat or harm to national security. As nicely put by the Indian Supreme Court,
“The anticipated danger should not be remote, conjectural or far-fetched. It should have proximate and direct nexus with the expression. The expression of thought should be intrinsically dangerous to the public interest. In other words, the expression should be inseparably locked up with the action contemplated like the equivalent of a ‘spark in a powder keg’.”
In this regard, the court made two unwarranted assumptions without any evidential basis. First, the mere allegation that the state was wicked or unfair in treating its subject did not necessarily lead to a conclusion that the readers of the books would feel contemptuous or disaffectious against the state, or a mere suggestion that the immigration arrangement between the PRC and the HKSAR Government was abused would lead the readers to feel discontent with the new immigrants. This is an issue of threshold or intensity. Secondly, even if the court could make such an inference from what was written in the books, it did not follow that national security interest was threatened or endangered. As the Supreme Court of South West Africa (Namibia) pointed out, “Because people may hold their government in contempt does not mean that a situation exists which constitutes a danger to the security of the State or to the maintenance of public order. To stifle just criticism could as likely lead to these undesirable situations”. This is about the justification of a real risk of threat or harm to national security, the existence of which justifies criminal sanction. Both of these premises are lacking.
Thirdly, it is even more unconvincing when the issue is about construction of the statutory language. The words “disaffection’, “discontent”, “hatred” and “contempt” in similar offences elsewhere have been extensively criticized for being too vague and uncertain. It is difficult to see why these words are regarded as too vague and uncertain in Canada, New Zealand, the United Kingdom, Australia, India, Namibia and so on, but the ordinary people in Hong Kong would have no difficulty in understanding what conduct is or is not prohibited by these words.
The second aspect of the proportionality test is that the offence should not go further than necessary to protect national security. This requires the court to consider the social impact of the offence, including its breadth and coverage as well as its effect on freedom of expression and balance them against the risk to national security. As personal liberty is at stake, it is well established that the court should adopt a stringent scrutiny.
“Although the situation in the HKSAR has more or less calmed down after the promulgation of the NSL, it is clear that these people have little change in their attitude. They just go underground and the seeds of unrest are still there. The political situation appears to be calm on the surface but very volatile underneath.”
There was simply no evidence before the court on the social situation in June/July 2021, and even if there were an under-current of threat, how serious the threat was and how was it assessed? These are not matters that the court was entitled to take judicial notice. They sound like the subjective political opinion of the judge rather than an impartial assessment of social conditions based on objective evidence. As a result, the balancing exercise conducted by the court was heavily tilted in favour of preservation of law and order, with little consideration of the chilling effect of the offence and its impact on the right to freedom of expression. Its conclusion was tainted by the court’s pre-occupation of social unrest in the past without any relevant evidence at the material time.
By affirming the breadth of the offence, the court missed the opportunity to narrow down this anachronistic offence and to bring it in line with the contemporary values of our legal system. Tolerance, diversity and broadmindedness are not just constitutional values; they are also inherent in the common law system. By failing to construe the offence in light of its purpose and object, and by convicting the defendants in the absence of evidence either on the prevailing social conditions or the existence of a threat of harm to the state, let alone the requirement of proof beyond reasonable doubt, the intense judicial scrutiny that is called for in protecting a fundamental right cherished by both the common law and the Basic Law is singularly lacking. Whether it is a matter of statutory construction, want of evidence or compliance with constitutional requirements, on any of these grounds, the convictions are wrong.
Professor Johannes Chan SC (Hon)
  HKDC 981 (7 September 2022).
 Ibid, at -.
 Ibid, -.
 Ibid, .
 Ibid, .
 Ibid, .
 Ibid, .
 Ibid, .
 Ramesh v Union of India, AIR 1988 SC 775.
 HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442, cited by the court in the present case in .
 S Rangarajan v P Jagjivan Ram  2 SCC 574. Hence, in Balwant Singh v State of Punjab AIR 1955 SC 1785, the Supreme Court held that raising of some lonesome slogan a couple of times by two individuals, but without anything more, did not constitute any threat to the Government nor could the same give rise to feelings of enmity or hatred among different communities or religious or other groups. See also Sanskar Marathe v State of Maharashtra (2015) 221 DLT 29 where the court drew a distinction between disloyalty to Government and commenting in strong terms upon the measures or acts of Government.
 Ibid, .
 Free Press of Namibia (Pty) Ltd v Cabinet for the Interim Government of South West Africa 1987(1) 614, at 624, cited by Article 19, Memorandum on Malaysian Sedition Act 1948 (London, July 2003), p 14.
  HKDC 981, .
 Ibid, .
 For a good summary of the history and development of the offence of sedition in the common law, see Australian Law Commission, Review of Sedition Laws: Discussion Paper 71 (May 2006), Ch 3, and New Zealand Law Commission, Reforming the Law of Sedition (2007), Ch 1.
 See Australian Crimes Act 1920, ss 24C and 24D.
 New Zealand, Canada, Australia, United Kingdom, Ireland and India.
 See, for example, the comments of the Court of Appeal in Re Tim Owen  HKCA 1689, -.
  HKDC 981, .
 In this regard, the seditious offences have been treated in the same category of national security offences under the NSL, which means that a person charged with these offences is unlikely to be able to obtain bail. A number of defendants charged with these offences have been detained before trial for over a year.
  HKDC 981, 
 Ibid, .
 Ibid, .
 I am grateful to Professor Henry Litton for the insightful discussion on this case.