Where the Gavel Wields: the Jurisdictional Conundrum of Sedition in Hong Kong

The offence of sedition in Hong Kong, an ‘outdated’, ‘draconian’, and ‘archaic’ law burdened by ‘notorious colonial connotations’,¹ once languished in a state of dormancy, has made an abrupt return to the city’s legal landscape following the enactment of the Hong Kong National Security Law (‘NSL’) in 2020.² Dozens of arrests and prosecutions have since been brought under this broadly worded crime housed in the omnibus Crimes Ordinance (Cap. 200), and efforts to impugn its constitutional validity have so far yielded naught.³ Sedition’s abrupt resurgence places Hong Kong at odds with many other common law jurisdictions which had inherited the same or a substantially similar offence from the British colonial machinery, where the archaic law has been consigned to obsolescence. The Singaporean Parliament resolved to repeal the Sedition Act in October 2021, thereby ending its 83-year presence on the statute books,⁴ and the Supreme Court of India ordered in May 2022 the suspension of the usage of the sedition law pending a full re-examination.⁵

The sudden resurgence of the sedition offence, which coincided with and has arguably been catalysed by the advent of the NSL, a law that has introduced what Hualing Fu and Micahel Hor described as ‘transformative changes’⁶ to Hong Kong’s legal landscape,⁷ has engendered myriad legal intricacies that belie straightforward resolution. These complexities encompass inter alia the offence’s compatibility with human rights safeguards enshrined in the Hong Kong Basic Law and the Hong Kong Bill of Rights, its proper scope and interpretation, and the appropriate venue where sedition cases should be tried. This article is concerned with the issue of venue or jurisdiction, and orbits within one specific question: whether or not the District Court, an intermediate trial court with limited criminal jurisdiction,⁸ can hear sedition cases. This jurisdictional conundrum, as this article will demonstrate, arises as a result of the nuanced interplay between the NSL and the sedition offence, the resolution of which thus necessitates a detailed deconstruction and x-ray of the relevant instruments not in isolation but in tandem.

Though the scope of the jurisdictional conundrum appears narrow, the importance that the answer bears is quite the inverse. In Hong Kong, criminal trial by jury is not available in the District Court, but only in the Court of First Instance.⁹ The issue of venue thus implicates the availability of jury trial in sedition cases. What is more, whilst jury trial is hitherto the default and only mode of criminal trial in the Court of First Instance, the NSL has reversed the position by allowing national security cases be tried instead by a panel of three judges. However, the NSL has failed to make clear the threshold required for the panel to return an effective verdict.¹⁰ The issue of venue therefore accentuates this very controversy over the convicting threshold, an issue that has so far remained unresolved. Moreover, the sentencing power conferred upon the District Court differs from that of other courts. For example, the maximum term of imprisonment that a District Court Judge can impose is 7 years,¹¹ whilst a Court of First Instance Judge may sentence an accused to life imprisonment. The issue of venue, therefore, bears on the severity of penalty a defendant may face.

The jurisdictional conundrum has been litigated twice before the District Court, in the cases of HKSAR v Tam Tak Chi¹² (‘Tam Tak Chi’) and HKSAR v Chan Tai Sum¹³ (‘Chan Tai Sum’). These two cases were presided over by, respectively, Judge Stanley Chan and Judge W K Kwok. Despite arriving at the same conclusion that the District Court did possess jurisdiction, the two judges relied on disparate premises and reasonings. Indeed, their concurrence is marred by incongruous lines of reasoning, the flaws within which this article endeavours to explicate.

This article is organised as follows. Section II offers an overview of the sedition offence in Hong Kong and traces its abrupt resurgence since 2020. Section III addresses the core jurisdictional conundrum, and in so doing dissects the multifarious strands of reasoning put forward by Judge Chan in Tam Tak Chi and Judge Kwok in Chan Tai Sum and exposes the flaws and contradictions therein. Section IV concludes.

In parallel to the trajectory of other British colonies, the offence of sedition first set foot on Hong Kong’s soil as part of a vast trove of colonial legal machinery geared towards social and political control. Initially, sedition was deployed as a handy tool to control and discipline the press and printed media.¹⁴ In 1938, a standalone piece of legislation, the Sedition Ordinance (then Cap. 217), was enacted with the explicit aim ‘to make better provision for the prevention and punishment of sedition’. The same year saw the passage of the Sedition Ordinance (No. 18 of 1938) in Singapore.¹⁵ The Hong Kong Sedition Ordinance, built upon a prototype set out in Stephen’s Digest of the Criminal Law,¹⁶ criminalised seditious act, utterance, and publication, and defined five categories of seditious intention. Under section 4(1), any person who performed a seditious act, uttered any seditious words, or printed or imported seditious publication would be liable on first commission to a fine of HK$5,000 and imprisonment for two years. Section 4(2) further renders criminal the possession of seditious publication, punishable by imprisonment for up to two years.

The structure and language of the sedition offence in the 1938 law became the ‘foundation for sedition for the subsequent decades in Hong Kong’.¹⁷ The whole statute was later repealed as part of a broader legislative consolidation exercise, and the offence was relocated to the omnibus Crimes Ordinance which houses a number of other serious offences such as treason, incitement to mutiny and piracy.¹⁸ The offence now forms part of section 10 of the Crimes Ordinance which, mirroring section 4 of the original 1938 law, criminalises seditious act, utterance, and publication, and retains the original definitions of seditious publication and seditious words. The provision in full reads:-

• (1) Any person who—

  (a) does or attempts to do, or makes any preparation to do, or conspires with any person to do, any act with a seditious intention; or

  (b) utters any seditious words; or

  (c) prints, publishes, sells, offers for sale, distributes, displays or reproduces any seditious publication; or

  (d) imports any seditious publication, unless he has no reason to believe that it is seditious,

  shall be guilty of an offence and shall be liable for a first offence to a fine at level 2 and to imprisonment for 2 years, and for a subsequent offence to imprisonment for 3 years; and any seditious publication shall be forfeited to the Crown.

• (2) Any person who without lawful excuse has in his possession any seditious publication shall be guilty of an offence and shall be liable for a first offence to a fine at level 1 and to imprisonment for 1 year, and for a subsequent offence to imprisonment for 2 years; and such publication shall be forfeited to the Crown.

• (3) Where any person has been convicted of an offence under subsection (1) or (2) in respect of any seditious publication, the court may order the seizure and forfeiture of any copies of the seditious publication in the possession of—

  (a) the person convicted; or

  (b) any other person named in the order, if the court is satisfied by evidence on oath that the copies are in the possession of the other person for the use of the person convicted.

• (4) Any copies seized under subsection (3) shall be disposed of as the court may direct; but no copies shall be destroyed until the expiration of the period within which an appeal may be lodged or, if an appeal is lodged, until the appeal has been finally determined or abandoned.

• (5) In this section—

  seditious publication (煽動刊物) means a publication having a seditious intention;

  seditious words ( 煽動文字) means words having a seditious intention.

Section 9 expands upon and enumerates seven categories of seditious intent, and offers four situations under which the purported seditious act, utterance or publication may escape criminal censure. A presumption of seditious intent formerly codified in section 9(3) was repealed in 1992.¹⁹ The section reads:-

• (1) A seditious intention is an intention—

  (a) to bring into hatred or contempt or to excite disaffection against the person of Her Majesty, or Her Heirs or Successors, or against the Government of Hong Kong, or the government of any other part of Her Majesty’s dominions or of any territory under Her Majesty’s protection as by law established; or

  (b) to excite Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure the alteration, otherwise than by lawful means, of any other matter in Hong Kong as by law established; or

  (c) to bring into hatred or contempt or to excite disaffection against the administration of justice in Hong Kong; or

  (d) to raise discontent or disaffection amongst Her Majesty’s subjects or inhabitants of Hong Kong; or

  (e) to promote feelings of ill-will and enmity between different classes of the population of Hong Kong; or

  (f) to incite persons to violence; or

  (g) to counsel disobedience to law or to any lawful order.

• (2) An act, speech or publication is not seditious by reason only that it intends—

  (a) to show that Her Majesty has been misled or mistaken in any of Her measures; o r

  (b) to point out errors or defects in the government or constitution of Hong Kong as by law established or in legislation or in the administration of justice with a view to the remedying of such errors or defects; or

  (c) to persuade Her Majesty’s subjects or inhabitants of Hong Kong to attempt to procure by lawful means the alteration of any matter...