Saturday, December 17, 2022

Johannes Chan: The Village of the Sheep Case (HKSAR v Lai Man-ling)

The Village of the Sheep Case: HKSAR v Lai Man-ling [1]
Professor Johannes Chan SC (Hon)

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political climate and been used to stifle and suppress political dissent, and when a similar offence has been either repealed or narrowed down in modern times in many parts of the common law world.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 Fact
The facts were not in dispute.  The five defendants were members of the Executive Council of the General Union of the Hong Kong Speech Therapists.  They faced one charge of conspiracy to print, publish, distribute, display and/or reproduce seditious publications, contrary to section 10(1)(c) of the Crimes Ordinance.  Between 4 June 2021 and 22 July 2021, they published three books which form the subject of the charge.  These books were targeted at young children studying at kindergarten and junior primary school.   In a gist, the books suggested that the wolves, who were taken to be the PRC Government and the HKSAR Government, were wicked and evil.  The sheep were kind and the oppressed group.  The wolves, under their tyrannic leader, were the aggressors trying to ruin the peaceful and happy life of the sheep with no right to do so.  Upon reading them, the court held that the children would be led to hate and excite their disaffection against the Central Authorities, to look down on the Chief Executive of the HKSAR, the police, the prosecution and the court with contempt, and not to trust the administration of justice in Hong Kong.[2] It was held that each of the books was a publication having seditious intention.  All defendants were convicted and received a custodial sentence. 

Statutory Construction: What are “discontent”, “disaffection”, “hatred” and “contempt”?
There was no dispute that the defendants had, inter alia, published those three books.  The issues were (1) whether they knew that the books had a seditious intention and (2) whether the defendants had a seditious intention.  “Seditious intention” is widely defined in section 9 of the Crimes Ordinance to mean, inter alia, “an intention to bring into hatred or contempt or to excite disaffection against the Central Authorities or against the Government of Hong Kong”; “to bring into hatred or contempt or to excite disaffection against the administration of justice”; and “to raise discontent or disaffection amongst the inhabitants of Hong Kong”.[3]  The court was plainly right to hold that it was also an element of the offence that the defendants had a seditious intention,[4] and that the burden of proof was on the prosecution.[5]  It was also right to hold that if the publication has a seditious intention involving more than one limb of section9(1) of the Crimes Ordinance, it is not necessary for the defendant to have a seditious intention mirroring exactly in every respect with the publication so long as he shares some of the seditious intention of the publication.[6]

     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.
     It is true that the books portrayed the state/government as a wolf, and the wolf was wicked because it has done something terrible, endangering the peaceful life of the sheep.  But is there anything wrong to say that the state has abused its power and caused suffering to the people?  This is something we hear all the time in any civil society - people might be unhappy with the state or aggrieved by the measures of the state.  They might make all kinds of complaints; many of such complaints might not be couched in the most civilised language or with the civility of intellectual reasoning.  Some of these complaints might be misinformed or might simply be an outburst of emotion.  Even if these complaints are groundless and do not come within the exceptions in section 9(2), does it mean that they incite "disaffection”, “discontent”, “hatred” or “contempt"?  The court has never addressed what constituted disaffection etc or how these requirements are to be distinguished from harsh or even unjustified criticisms of the state.  The suggestion that they are ordinary English words does not take the matter any further.  These words describe emotion, but why should people be punished for stirring up such emotion, unless some harm has been proved?  As the court rightly pointed out, the sedition offence created by sections 9 and 10 of the Crimes Ordinance is to protect national security.[7]  Thus, these terms, which form the key elements of the seditious offence, have to be construed in light of this context and purpose of the Ordinance.   Two points could be made here.  First, any criticism against the state could not amount to “disaffection”, “discontent”, “hatred” or contempt” unless they reach certain level of intensity.  As a criminal offence that restricts freedom of speech, it would not be unfair to expect a high threshold or intensity before any criticism could be labelled as "disaffection”, “discontent”, “hatred” or contempt".  Diversity and tolerance are the virtues of the common law system.  The court accepted that it should not read the books through the eyes of an extremely radical or cynical reader, but it must consider the likely effect of the books on ordinary people and on the audience to which the books are addressed.[8]  Given the penal nature of the criminal provision, it may be appropriate to go further to adopt the standard of not just an ordinary reasonable person, but a “reasonable, strong minded and courageous person”, and not a person of “a weak and vacillating mind”.[9]

     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.[10]  Hence, the key has to be a real risk of threat or harm to national security.  As nicely put by the Indian Supreme Court,[11]

“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.[12]  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”.[13] 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.

      In the present case, the children may be misled, even unjustifiably, but this does not mean that there is a real risk of threat or harm to national security.  There is simply no such evidence, let alone any sufficient analysis of the offence.  On this ground alone, the conviction could not stand.

Constitutional Challenges

This leads me to the constitutional challenges.  There are two main aspects.  First, the offence fails the test of legal certainty.  Secondly, the offence fails to meet the requirement of proportionality.  It may be worthwhile to point out that a constitutional challenge does not necessarily lead to a striking out of the offence or a denial of the importance of protecting national security.  Striking out is the last resort.  More importantly, constitutional arguments require the court to focus on the fundamental constitutional values and to strike a better balance between protection of fundamental rights and upholding national security by ensuring, through various techniques of construction, that the measures to protect national security do not go beyond what is necessary to achieve such purpose.

Legal Certainty
The court rejected the argument that the words “disaffection”, “discontent”, “hatred” and “contempt” in section 9 are too vague so that an ordinary person will not be able to regulate his conduct to avoid criminal liability.  Three reasons were provided.  First, these are ordinary words with ordinary meaning, which may vary with time, place and circumstances of the conduct in question and are best left to the trial judge or jury.[14] Secondly, although these words are descriptive of a person’s subjective feelings or emotions, some objective facts will have to exist to allow the ascertainment of subjective feelings or emotions.  Thirdly, section 9(2) sets out some conduct which will not be regarded as seditious; hence there are objective guidelines to allow a defendant to delineate the area of risk.  None of them is convincing.
     First, the fact that the matter is best resolved by the trial judge or jury does not absolve the state from defining what the prohibited act is.  Section 9(2) is helpful in identifying what does not constitute seditious intention, but as pointed out above, the absence of a negative does not prove the existence of a positive.  Once the conduct in question does not fall within section 9(2), it still begs the question what constitutes “hatred”, “contempt”, “disaffection” and “discontent”. Secondly, these are general terms. Even if some objective facts exist, the standard or intensity required may vary from persons to persons.  The same words may be perfectly acceptable by one person but regarded as offensive by another person.  In a plural society, there could hardly be any objective standard to determine these subjective feelings save in the most obvious situations.  Some may think the Small House Policy in favour of the indigenous inhabitants of the New Territories is discriminatory, socially divisive, politically corrupt and should be abolished.  Some may think that homosexual behaviour is highly offensive and should be penalized, and same-sex marriage is disgraceful.  Would they incite “discontent” among the inhabitants of Hong Kong?  Some may accuse the Government of colluding with the business sector at the expense of the poor and the unresourceful and may call for the resignation of the Chief Executive.  Some may believe that Hong Kong has become a police state.  An aggrieved litigant may use harsh or even vulgar language to criticize a judge or the court.  Would they incite hatred and contempt against the Government or the administration of justice?  Different people may have different standards in determining what constitutes “hatred”, “contempt”, “disaffection” and “discontent” and in assessing when words or acts transgress acceptable limits.  Reasonable persons may differ reasonably.  This is what a plural society is about, and it would hardly be acceptable that criminal liability is to be based on such fluid and uncertain standards.

       In this regard, the court’s reasoning is weakened by its refusal to consider the wealth of international and comparative materials on the basis that “their political background, social condition, culture and the availability of alternative legislations to deal with seditious situations to safeguard their national security are different to those in the HKSAR.”[15]  Such sweeping statement is unjustified.  First, the offence in sections 9 and 10 of the Crimes Ordinance has its origin in the common law.[16]  Secondly, a similar offence exists in statutory form in many parts of the common law world.  Indeed, some of them bear remarkable similarities with the offence in Hong Kong. For example, the wordings of the relevant offence in New Zealand and Australia are almost the same as that in Hong Kong.[17]  Thirdly, the offence has been studied in extenso by the Law Commission of at least five different jurisdictions.[18]  Even giving due allowance to the differences in social and political circumstances, it would be a sweeping statement to suggest that the intellectual reasoning and legal wisdom of the entire common law world have nothing to offer to the interpretation and development of a similar offence in Hong Kong.[19]   After all, the common issue in almost any jurisdiction is how to balance freedom of expression with protection of national security.  Hong Kong is not unique in this regard

     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.


There are two aspects in the court’s application of the proportionality test.  The first is that there was only a cursory consideration of the existence of a rational connection between the restriction and the objective to be achieved.  The court has rightly identified the objective as the protection of national security.  The means to achieve this objective is to punish any publication with a seditious intention.  It has already been pointed out that inciting hatred or contempt or discontent does not necessarily lead to a real risk of danger of national security or public order. 

     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. 

      A few observations could be made.  First, the court has made unjustified factual assumptions.  The three books in question were published between June and July 2021.  The civil unrest in 2019 have long calmed down by then.  The National Security Law, which was enacted and came into effect on 30 June 2020, has caused dramatic social and political changes in the community.  Nonetheless, the court held that:[20]

“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.[21] 

      Secondly, as it did regarding the issue of legality, the court also found the overseas statutes, case law, law commission working paper, academic commentaries of little assistance in determining proportionality.[22]  It has already been pointed out that this sweeping view is unjustified. The comparative materials are helpful in at least three aspects.  First, the global trend has largely been against sedition and in favour of free speech.  Similar seditious offences had been repealed or amended in many other jurisdictions. There are common underlying concerns about these seditious offences.  Civil societies should afford rooms for dissents.  Secondly, they illustrate the risk of how this offence has been used, over a long period of time and in many jurisdictions, to stifle and silent political dissent.  Is there anything to suggest that this offence would not have the same effect in Hong Kong?  Thirdly, they provide insights on how the court has been trying to mitigate the harshness of this offence so as to bring a proper balance between the constitutional right to freedom of expression and the legitimate concern of protecting national security.

       This brings me to the last observation.  The breadth of the offence is a material consideration in assessing the proportionality of the offence. In the present case, the court rejected the argument 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” (“the common law intention”).  It reached this conclusion primarily by tracing the legislative history of the offence.   While some of the reasonings of the court may be open to arguments, the court is probably right to note that “violence is not the only means to bring down a government or cripple its running.  Spreading rumour, hatred and disinformation is clearly a readily available and may even be a more effective weapon without the need to incite people to violence.”[23]  However, it is in this area that comparative materials may offer valuable insights and assistance.  As the court noted, the introduction of common law intention stemmed “from the need perceived by the judges to limit the scope of the sedition offence so that it was only when the words uttered had created a real risk to upset political and social order before the criminal law would step in to intervene.”[24]  In the old days, such real risk might be created only when violence or threat of violence was used.  In modern days of rapid telecommunication development, means other than violence or threat of violence may pose an equally real risk to upset political and social order, but this fact alone does not detract the force of the concern that criminal law should only intervene when there is a real risk to upset political and social order.  This reinforces the above interpretation that a high standard of intensity is required so that there could not be any seditious offence unless words uttered had created a real risk to upset political and social order, and such real risk has to be demonstrated by cogent and persuasive evidence.  There is simply no such evidence in the present case that the discontent, hatred, contempt or disaffection has created a real risk of threat or harm to national security.  Without the requirement of such a real risk of threat or harm to national security, there is a strong argument that the seditious offence is disproportionate and fails to pass muster the constitutional requirement for the protection of freedom of expression.  The offence might likely be saved with this requirement, which illustrates the value of constitutional arguments to provide a principled means to approach national security offences and to allow the court to read down the scope of sweeping criminal offences so as to achieve a better balance between fundamental rights and protection of national security.

      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)[25]

[1] [2022] HKDC 981 (7 September 2022).

[2] Ibid, at [119]-[128].

[3] Ibid, [70]-[71].

[4] Ibid, [75].

[5] Ibid, [80].

[6] Ibid, [78].

[7] Ibid, [62].

[8] Ibid, [116].

[9] Ramesh v Union of India, AIR 1988 SC 775.

[10] HKSAR v Ng Kung Siu (1999) 2 HKCFAR 442, cited by the court in the present case in [91].

[11] S Rangarajan v P Jagjivan Ram [1989] 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.

[12] Ibid, [124].

[13] 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.

[14] [2022] HKDC 981, [94].

[15] Ibid, [103].

[16] 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.

[17] See Australian Crimes Act 1920, ss 24C and 24D.

[18] New Zealand, Canada, Australia, United Kingdom, Ireland and India.

[19] See, for example, the comments of the Court of Appeal in Re Tim Owen [2020] HKCA 1689, [38]-[39].

[20] [2022] HKDC 981, [104].

[21] 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.[21]  A number of defendants charged with these offences have been detained before trial for over a year. 

[22] [2022] HKDC 981, [103]

[23] Ibid, [85].

[24] Ibid, [85].

[25] I am grateful to Professor Henry Litton for the insightful discussion on this case.

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