On 15 December 2025, the Court of First Instance of the High Court of Hong Kong handed down a monumental 855-page judgment in the case of HKSAR v Lai Chee Ying [2025] HKCFI 6291 (“Jimmy Lai Judgment”). While the vast majority of the decision serves as a meticulous fact-finding exercise regarding the complex evidentiary record, the jurisprudential core of the ruling resides in Chapters 2 and 29. It is in these chapters that the Court addresses the legal controversies surrounding the charges of collusion with foreign forces provided in Article 29 of the Hong Kong National Security Law (“HKNSL”) and sedition provided in Sections 9 & 10 of the then Crimes Ordinance (now replaced by Sections 23 – 26 of the Safeguarding National Security Ordinance). A close reading of these chapters reveals a judicial approach marked by distinct strengths in legal methodology, critical weaknesses regarding rights protection, and looming uncertainties for the future of Hong Kong’s common law system.

The Good: Methodological Rigour and Common Law Connectivity

Lai and his three newspaper companies faced three charges related to national security. On Count 1, the court found that the defendants published a series of seditious articles designed to incite hatred against the Central Authorities and the HKSAR government. For Counts 2 and 3, the ruling stated that Lai used his extensive foreign network to lobby senior US officials to impose sanctions and engage in other hostile activities against the PRC and Hong Kong.

The judgment is notable for its steadfast adherence to traditional common law interpretation methodologies, thereby ensuring that the HKNSL is navigated with technical precision. To interpret the elements of the collusion offence, the Court prioritized the “literal rule”, emphasising the ordinary meaning, purpose, and context of the statutory text [47]–[63]. This strict adherence to textual analysis is designed to enhance legal certainty and predictability, serving as a vital reflection of the rule of law.

Furthermore, the Court employed the “purposive rule” to analyze the legislative background, thereby defining key terms such as “hostile activities” and “request” to reject overly narrow defence interpretations [57]. This combination of textual and purposive analysis aligns with the Hong Kong courts’ historical approach to national security cases (see, for example, the Court of Final Appeal’s ruling in HKSAR v Tam Tak Chi [2025] HKCFA 4).

The Bad: Literalism Over Liberty

However, this technical adherence to text often appears to overshadow the substantive protection of fundamental rights. Despite the HKNSL explicitly mandating respect for human rights (Article 4) and the rule of law (Article 5), the judgment did not sufficiently elaborate on how these rights are to be balanced against security concerns at an operational level.  While the Court affirmed that it had taken rights protections and rule of law principles into account [57], its operative logic was heavily skewed toward the literal meaning of the provisions. This intense focus on literalism risks sidelining the robust human rights balancing exercises required in modern constitutional adjudication.

This issue is compounded by the judgment’s comparative analysis, which relied on the existence of “similar” national security laws in the UK, Australia, Canada, and Singapore [46]. This broad-brush approach largely ignored significant differences, especially when most of those jurisdictions do not criminalize the act of requesting foreign sanctions at all or in the same manner as the HKNSL. By failing to dissect these differences alongside the similarities, the Court missed a critical opportunity to clarify the boundary between criminal collusion and legitimate political expression under international human rights standards.

The Uncertain: The Appellate Horizon

The element of uncertainty lies in what comes next. The Court of First Instance has laid a foundation that is logically rigorous yet seemingly imbalanced regarding civil liberties. The judgment explicitly leaves room for exploration regarding the discourse on rights and comparative law. As the case potentially moves up the appellate ladder, the central question remains whether appellate courts will accept the lower court’s heavy reliance on literalism or if they will require a more substantive proportionality analysis. Until the appellate courts clarify whether the interpretation rules allow for a more generous accommodation of human rights, the precise boundaries of acceptable political conduct in Hong Kong remain in flux.

Finished Chapter, Unfinished Story

The Jimmy Lai judgment is a document of immense complexity. It is logically detailed and rooted in common law tradition, yet open to critique for its comparative analysis and rights protection. It represents a significant chapter in Hong Kong’s legal history, but it is unlikely to be the final one.

Similarities of Sabotage Provisions in HKNSL and SNSO

The first problem arises from the substantial overlap in the scope of protected objects. In the HKNSL, the public infrastructure to be protected is the means of transport, transport facilities, electric power or gas facility etc. (Article 24(1)(3) & (4) of the HKNSL). In the SNSO, the public infrastructure to be protected closely mirrors that of the HKNSL but extends to include any public infrastructure that belongs to or is occupied by the Central Authorities (section 49(4) of SNSO).

Second, in terms of actus reus, the sabotage offence in SNSO requires damaging or weakening of public infrastructure. Section 49(3) of the SNSO defines this broadly to include any act that causes the public infrastructure vulnerable to abuse or damage, causes it to be vulnerable to be accessed or altered, or not be able to function or operate as it should. In contrast, the definition of the actus reus of sabotage in HKNSL includes any acts that cause “grave harm to society”. It is arguable that acts involving damaging or weakening of public infrastructure, as set out in the SNSO, would also fall within the ambit of “grave harm to society” under the HKNSL. Therefore, despite differences in statutory language, the actus reus elements of sabotage under both laws may, in practice, substantially overlap, and allows the prosecution to cast a wide net when selecting which offence to charge.

Third, with respect to mens rea, sabotage in the HKNSL explicitly requires an intention to coerce the central or local government or to intimidate the public, for the purpose of pursuing a political agenda (Article 24 of the HKNSL). In contrast, the SNSO only requires an intention or recklessness as to whether national security would be endangered (section 49(1) & (2) of the SNSO). Notably, section 2 of the SNSO incorporates the definition of national security (the status in which the state’s political regime, sovereignty, unity and territorial integrity, the welfare of the people, sustainable economic and social development, and other major interests of the state are relatively free from danger and internal or external threats, and the capability to maintain a sustained status of security) in Article 2 of the National Security Law of the PRC into domestic legislation. Given the ambiguous nature of the definition of national security in SNSO, any mens rea satisfying sabotage under the HKNSL could also fall within the SNSO.

Implications on Prosecution Decisions

The differences between the protected objects, actus reus and mens rea of the sabotage provisions in the HKNSL and the SNSO are significant, not only on the level of legislative language but also in terms of sentencing and judicial safeguards. Under the SNSO, the imposition of life imprisonment for sabotage is only possible if the offence involves collusion with external forces, a requirement that is absent in the HKNSL. Furthermore, as domestic legislation, the SNSO is subject to judicial scrutiny by Hong Kong courts, which retain the power to review its compatibility with the protection of human rights. In contrast, this judicial safeguard is not available with regard to the HKNSL, which is a piece of national law of the PRC (See Lai Chee Ying v The Committee for Safeguarding National Security of the HKSAR [2023] HKCFI 1382, paras. 23 – 24).

In the United Kingdom, one of the safeguards against the abuse of the prosecution of sabotage is the requirement of foreign power condition (section 31(1) of the National Security Act 2023). In comparison, Hong Kong lacks an analogous safeguard, as collusion with external forces is not a mandatory element for sabotage. Given the significant overlap in the elements of sabotage under the HKNSL and the SNSO, the prosecution may enjoy a wide discretion in selecting between the HKNSL and the SNSO, and to pursue the charge most conducive to securing a conviction. It is therefore important for both the local and the international community to maintain vigilant oversight over the enforcement of sabotage provisions of Hong Kong, and to ensure that prosecution decision is only based on sufficiency of evidence and general public interest, as mandated by the Prosecution Code of the Department of Justice of the HKSAR.

In 2021, the Commissioner of Police issued formal notices to three representatives of the Alliance, mandating the disclosure of specific information pursuant to sections 3(1)–(3) of schedule 5 of the Implementation Rules for Article 43 of the Hong Kong National Security Law (the “Implementation Rules”). When the defendants refused to provide the information as requested, they were convicted and sentenced. Hence, the Alliance’s recent landmark victory in the Court of Final Appeal (the “CFA”), which quashed these convictions and sentences, represents a jurisprudential milestone that has elicited profound socio-political debate. This article demonstrates how the CFA applies common law interpretation methods to balance executive powers, even amidst increasing pressure from the Chinese and Hong Kong governments to prioritise national security safeguards.

Key Legal Issue Addressed in the Case

One critical question resolved in the case was: When the Commissioner of Police serves a written notice under sections 3(1)–(3) of schedule 5 of the Implementation Rules, requiring a foreign/Taiwan agent to provide specified information within a designated period and manner, must the Commissioner prove that the recipient is “factually” a foreign/Taiwan agent, or is it sufficient to demonstrate a “reasonable belief” that the recipient qualifies as such?

The Court’s Common Law-Based Interpretation

Consistent with Hong Kong courts’ longstanding approach to statutory interpretation, CFA dissected the elements of the Implementation Rules using common law principles. The Court concluded that the phrase “reasonably believes” in sections 3(1) of schedule 5 pertains only to the element of “necessity to prevent or investigate offences endangering national security”. In other words, the “reasonable belief” requirement does not extend to establishing whether the recipient is a foreign/Taiwan agent or whether a person is an office-bearer or manager of such an agent. In other words, the Commissioner must prove that the recipient of the notice is factually a foreign/Taiwan agent and that the person is factually an office-bearer or manager of such an agent. Mere “reasonable belief” is insufficient.

Furthermore, the CFA emphasised that when interpreting schedule 5 of the Implementation Rules, the Court also needed to consider schedule 7, as mandated by the common law principle to interpret statutes holistically. Section 2(4) of schedule 7 requires a judge to be satisfied that there are “reasonable grounds” to suspect a person possesses information or materials relevant to an investigation before granting an order for disclosure. By contrasting this “reasonable grounds” standard in schedule 7 with the absence of a “reasonable belief” requirement in schedule 5, the Court affirmed that schedule 5 imposes a more stringent burden of proof in establishing the factual basis of the recipient’s identity.

Balancing National Security and Human Rights in Judicial Practice

The CFA’s interpretation of schedules 5 and 7 thereby strengthens procedural safeguards afforded to individuals subject to such notices. Under schedule 7, an application for a disclosure order must be filed ex parte by the Secretary for Justice. Under  Hong Kong law, ex parte applications impose a continuous obligation of full and frank disclosure on the applicant, requiring the honest presentation of all material facts, including those adverse to their case. Furthermore, schedule 7 explicitly preserves the doctrine of legal professional privilege while excluding reliance on the privilege against self-incrimination.

This ruling serves as a compelling example of the Hong Kong courts’ ongoing efforts to interpret national security laws and regulations using common law interpretation methods within the context of increasing pressures from both the Chinese and Hong Kong governments to ensure national security. While the extent to which the Hong Kong judiciary can maintain this promising trajectory remains uncertain, the success achieved by the Alliance in this case highlights the judiciary’s commitment to balancing the complex interplay between national security imperatives and the protection of human rights.

‘Seditious publication’ was one of several offences in the Crimes Ordinance that were based on the British concept of ‘seditious intention’.  Since 2020, the Hong Kong authorities had reactivated enforcement of these type of offences. Against the Stand News defendants, the prosecution claimed that they and others agreed to publish and/or reproduce publications that involved, among others, ‘bringing into hatred or contempt or to excite disaffection against the Chinese Central Authorities and the Hong Kong Government’, and ‘raising discontent or disaffection amongst Hong Kong inhabitants’.

The trial began in October 2022. The trial court reserved verdict in June 2023 but delayed delivering it, pending the Hong Kong Court of Appeal’s judgment in the Tam Tak Chi case. This author discussed this appellate judgment in an April 2024 blogpost.

When the trial court delivered its verdict convicting all the Stand News defendants on 29 August 2024, it rejected the defence’s constitutional arguments, relying on the Hong Kong Court of Final Appeal’s decision in Tam’s application for leave to appeal, which held that it was not reasonably arguable that the seditious intention offences were legally uncertain and disproportionate restrictions of freedom of expression. Instead, the verdict, now officially translated into English, offers a detailed and contemporary approach on the distinction between journalism and sedition.

The prosecution relied on 17 articles (which was less than 1% of Stand News’s output) as ‘overt acts’ of the criminal agreement. The trial court found 11 to have ‘seditious intention’. Nine were blog articles, i.e. short articles of 500 to 1,000 Chinese characters. The trial court found them to have denigrated law enforcement actions, attacked the Hong Kong National Security Law and the seditious intention offences, and used incomparable examples to incite public hatred of the Hong Kong Government. Two went further to rally readers to be ready to act against the Chinese Central Authorities. None substantiated claims with any objective basis.

The foundation of the findings above was the trial court’s appreciation of the ‘context of the relevant time period’, following the jury directions reported in R v Aldred (1909). Reading opinion surveys, the trial court concluded that throughout the publication period, a few to several million Hong Kong inhabitants distrusted the Chinese Central Authorities and the Hong Kong Government, and were susceptible to incitement, disinformation or rumours. Conflicts between the Government and inhabitants and social divisions became more likely to happen.

Pui-kuen Chung and Patrick Lam, the two former chief editors, were convicted on the findings that each of them had, in that capacity and knowing of the intention of the seditious articles, approved them for publication, and that each of them had agreed with Tony Tsoi, who directed Stand News’s corporate proprietor, regarding the continuous publication of seditious articles on Stand News. The editors’ claim that they only sought to achieve quality journalism and disseminate information and pluralistic views was rejected.

Rather, the trial court found from its reading of Stand News’s ‘Launch Statement’ (which included this indication: ‘Hong Kong is the home turf of Hongkongers; defending the home turf is our unyielding stance.’) that this online media (and its backers) had a political proposition, which was ‘Hong Kong’s localism for Hongkongers’ autonomy excluding China’. And, during the Anti-ELAB Protests, Stand News allowed itself to ‘become a tool for smearing and vilifying the Central Authorities and the [Hong Kong] Government’.

Whilst the verdict made stark and political findings and it has been seen as exemplifying the decline of Hong Kong’s press freedom, commentaries continue in the press here. For example, John Burns, a political scientist, had written on the press’s watchdog role after the verdict. What the verdict does frown against are articles that offer a singular political viewpoint or interpret governmental acts with exaggeration and emotion. Omitting basic facts in a dispute is risky. Coincidentally, one Hong Kong newspaper’s chief editor wrote to columnists recently, urging them to be ‘more prudent’, base comments on ‘accurate facts’ and be ‘law-abiding and measured’. His note ended ominously: ‘Otherwise it is difficult to say whether one day crisis may come.’

Readers of this blog may find one detail in the verdict remarkable. The trial court referred to British and European free speech and journalistic ethics materials. It was positively impressed with their emphases of ‘good faith’, ‘reliability’ and ‘verification of facts’ in news reporting and of ‘a sufficient factual basis even for a value judgment’. Editorial decision-making carries duties and responsibilities. This Hong Kong verdict’s prohibitions could well be not wildly far from the restrictions on press freedom internationally accepted as permissible.

Interpretation of Basic Law Article 37

Article 37 of the Basic Law (BL) enshrines the constitutional right to marriage in Hong Kong in simple terms – ‘the freedom of marriage of Hong Kong residents … shall be protected by law’. Whilst the diction in itself is broadly termed, the court first suggested that the constitutional context, inclusive of Article 19(2) of the Hong Kong Bill of Rights (HKBOR), would restrictively bind the said right of marriage to a heteronormative one. Article 19(2) of HKBOR guarantees that ‘the right of men and women of marriageable age to marry … shall be recognized’. In the similar case of Joslin v New Zealand, Article 23(2) of the International Covenant on Civil and Political Rights (ICCPR), as the equivalent form of Article 19(2) of HKBOR, had been interpreted as restricted to the ‘union between a man and a woman’. Therefore, by adopting the strict interpretation used in Joslin, the court reasoned that Article 37 of the BL would only confer a right to heterosexual marriage to ensure that the provisions in the BL and HKBOR would sit together harmoniously.

However, the draconian interpretation of HKBOR Article 19(2) is uncalled for. The wording is inherently open-ended – it simply ensures the right of both men and women to marry without specifying a strict union between men and women. Furthermore, it is a pivotal common law tradition to generously interpret constitutional rights, whereby an inclusive construction of the equivocal language used in Article 19(2) of HKBOR is only proper.

In any event, s 2(5) of the Hong Kong Bill of Rights Ordinance (Cap 383) bars any derogation of fundamental human rights recognised in Hong Kong on the pretext that HKBOR recognises them ‘to a lesser extent’. Hence, even if Article 19(2) of HKBOR does constitute part of the constitutional context, its arguably narrower prescription of a right to heterosexual marriage cannot confine the more inclusive wording of Article 37 of the BL.

Use of Lex Specialis

To align with international authorities, Sham Tsz Kit also denied the constitutional right to same-sex marriage on the premise of lex specialis. This legal maxim dictates that priority shall be given to a specific, rather than general, provision if both legal norms cover the same subject matter. On this basis, the court reasoned that since BL Article 37 is the lex specialis as to marriage – interpreted as only enabling heterosexual unions – no other constitutional provisions could otherwise confer the right to same-sex marriage.

However, the uncompromising application of lex specialis is unwarranted. In international human rights jurisprudence, the Human Rights Committee (HRC) has disregarded lex specialis on multiple occasions. To illustrate, Muller and Engelhard v Namibia concerned the discriminatory treatment towards a husband, who has to apply for the change of his surname to his wife’s surname, while a wife need not apply to change her surname to her husband’s surname. Yet, the HRC decided to fully address the general provision on the right to equality under ICCPR Article 26, instead of the more particular provision on the equality of rights between ‘spouses, as to’ and ‘during marriage’ under ICCPR Article 23(4). This therefore suggests that there is no mandated application of lex specialis in the context of rights interpretation, even within the subject matter of marriage. Hence, local courts may well deviate from this interpretation principle to give due respect to other constitutional rights to equality, privacy, and freedom of conscience.

Asia is currently experiencing a progressive wave of legalisation of same-sex marriage and recognition of foreign same-sex marriage. Moving forward from Sham Tsz Kit, it remains hopeful that Hong Kong courts will embrace a more inclusive future for the LGBTIQA+ community.

“发表煽动文字”是《刑事罪行条例》中建基于英国“煽动意图”概念的几项罪行之一。 自2020年以来，这些罪行已从沉睡甦醒，用以起诉社交网络服务的管理员和用户、图书出版商、网络媒体编辑及《苹果日报》的东主黎智英。

因此，谭对定罪的上诉备受期待。 “煽动言论”这控罪被不同人士认定是“极端”、“殖民地”、“模糊”和“不相称” [第163段]。 许多普通法司法管辖区已经废除或宣布此类罪行无效，或者对之加以限制。联合国人权事务委员会对香港的“煽动意图”罪行表示严重关切”[第15及16段]。再者，英国枢密院在Vijay Maharaj v A-G of Trinidad and Tobago （2023年10月）案中的建议是，合法性原则将限制“煽动意图”罪行，“要求它必须有煽动暴力或骚乱的意图” [第47段]。

香港特区上诉法庭于2024年3月7日作出一致判决，驳回谭的上诉。 法庭检视了香港立法历史和来自1950年代的香港判例，认为香港殖民地立法机关早在1938年就“有意识地”决定不将煽动暴力的意图列为成文法“煽动意图”罪行的必要元素”[第81及82段]。 因此，Vijay Maharaj案不适用。 此外，法庭认为，“煽动意图”的定义在法律上是确定的：“煽动意图”必须“宽泛地”制定，以便及时有效地维护国家安全[第121段]。 它所使用的“普通语言”具有“充分和明確表述的核心”（而法庭对此阐述自己的理解），于是属可以预见[第122至126段]。 另外，法庭裁定，这些罪行符合与英国法院目前使用的相称性测试类似的四步相称性测试。法庭认为，对何谓煽动的界定并不妨碍就社会问题进行公开、坦率和充分的对话和辩论。加上律政司司长在授权检控方面所扮演的角色，法庭的结论是这些罪行“只不过是实现维护国家安全和公共秩序的合法目的所必需的” [第138至142段]。

上訴法庭的判決令人不安。 它不僅忽略了陳文敏教授所指出的法律史上的關鍵部分，即1938年的成文法“煽動意圖”罪行是“基于[英国]国务大臣指示编制的示范条例“（而此观察倾向对普通法司法管辖区之间就此类成文法罪行的相似行文[第930至931页]提供解释），而且贬低了锡拉库扎原则 （指它“明显过时” [第136段]）和在其席前提供的比较案例和法律改革报告（指“海外材料……与[我们的环境]甚为不同”[第130段]）。

尽管谭已对上诉法庭的判决提出上诉，但这并没有带来多少安慰。 《刑事罪行条例》中的罪行已被 2024年3月制订的《维护国家安全条例》的条文所取代。 新条例明确规定，新的“煽动意图”罪行旨在维护中国的国家主权、安全和发展利益，使用相同的“普通语言” ，不必证明被告人意图煽惑他人扰乱公共秩序或采用暴力。

在这等情况下，应谨慎行事。 可参考的例子是一位参与通过新条例的立法会议员关闭了其Facebook頁面，以便审查里面的帖子的行为。之后，该议员在重启页面时加入声明，说明如果有人因阅读帖子而引起对国家制度、机构，或特区宪制秩序、行政、立法或司法机关产生憎恨、藐视或离叛，则这绝非该议员本人所抱持的意图。 于是，在现今的法律背景下，政治主张或评论是要基于事实和十分平和。

“發表煽動文字”是《刑事罪行條例》中建基於英國“煽動意圖”概念的幾項罪行之一。 自 2020 年以來，這些罪行已從沉睡甦醒，用以起訴社交網路服務的管理員和用戶、圖書出版商、網路媒體編輯及《蘋果日報》的東主黎智英。

因此，譚對定罪的上訴備受期待。 “煽動言論”這控罪被不同人士認定是“極端”、“殖民地”、“模糊”和“不相稱”[第163段]。許多普通法司法管轄區已經廢除或宣佈此類罪行無效，或者對之加以限制。聯合國人權事務委員會對香港的“煽動意圖”罪行表示嚴重關切[第15及16段]。再者，英國樞密院在Vijay Maharaj v A-G of Trinidad and Tobago （2023年10月）案中的建議是，合法性原則將限制“煽動意圖”罪行，“要求它必須有煽動暴力或騷亂的意圖”[第47段]。

香港特區上訴法庭於2024年3月7日作出一致判決，駁回譚的上訴。法庭檢視了香港立法歷史和來自1950年代的香港判例，認為香港殖民地立法機關早在1938年就“有意識地”決定不將煽動暴力的意圖列為成文法“煽動意圖”罪行的必要元素[第81及82段]。 因此，Vijay Maharaj 案不適用。此外，法庭認為，“煽動意圖”的定義在法律上是確定的：“煽動意圖”必須“寬泛地”制定，以便及時有效地維護國家安全[第121段]。它所使用的“普通語言”具有“充分和明確表述的核心”（而法庭對此闡述自己的理解），於是屬可以預見[第122至126段]。 另外，法庭裁定，這些罪行符合與英國法院目前使用的相稱性測試類似的四步相稱性測試。法庭認為，對何謂煽動的界定並不妨礙就社會問題進行公開、坦率和充分的對話和辯論。加上律政司司長在授權檢控方面所扮演的角色，法庭的結論是這些罪行“只不過是實現維護國家安全和公共秩序的合法目的所必需的”[第138至142段]。

上訴法庭的判決令人不安。它不僅忽略了陳文敏教授所指出的法律史上的關鍵部分，即1938年的成文法“煽動意圖”罪行是“基於[英國]國務大臣指示編製的示範條例”（而此觀察看來對普通法司法管轄區之間就此類成文法罪行的相似行文[第930至931頁]提供解釋），而且貶低了錫拉庫扎原則 （指它“明顯過時”[第136段]）和在其席前提供的比較案例和法律改革報告（指“海外材料……與[我們的環境]甚為不同”[第130段]）。

儘管譚已對上訴法庭的判決提出上訴，但這並沒有帶來多少安慰。《刑事罪行條例》中的罪行已被  2024年3月制訂的《維護國家安全條例》的條文所取代。 新條例明確規定，新的“煽動意圖”罪行旨在維護中國的國家主權、安全和發展利益，使用相同的“普通語言” ，不必證明被告人意圖煽惑他人擾亂公共秩序或採用暴力。

在這等情況下，應謹慎行事。可參考的例子是一位參與通過新條例的立法會議員關閉了其Facebook頁面，以便審查裡面的帖子的行為。之後，該議員在重啟頁面時加入聲明，說明如果有人因閱讀帖子而引起對國家制度、機構，或特區憲制秩序、行政、立法或司法機關產生憎恨、藐視或離叛，則這絕非該議員本人所抱持的意圖。於是，在現今的法律背景下，政治主張或評論是要基於事實和十分平和。

In the circumstances, caution is key. Take the case of a HK legislator who passed the new Ordinance. Soon after the new Ordinance was passed, he closed down his Facebook page to scrutinize the posts and upon restoring it, he appended a statement disclaiming that it was not his intention at all if anyone reading the posts felt hatred, contempt or disaffection against the system and institutions of the State, the constitutional order, the executive authorities, the legislature or the judiciary of HK. Thus, in the current legal context, political advocacy or commentary has to be fact-based and very moderate.

In early October, the Office of the UN High Commissioner for Human Rights (OHCHR) released a press statement stating that they were alarmed by a Hong Kong court case which involves the sentencing of minors under the National Security Law in Hong Kong (NSL). The OHCHR cited Article 37 of the Convention on the Rights of the Child (CRC) which states that the imprisonment of children “shall be used only as a measure of last resort and for the shortest appropriate period of time”, and regretted that the NSL applied to children. In response, the Hong Kong Government expressed “strong disapproval” towards OHCHR’s remarks and contended that human rights are adequately protected by the NSL.

In HKSAR v Yuen Ka Him [2022] HKDC 1147, the five defendants were aged 16-19, with four of them under 18. They were convicted of conspiracy to incite subversion and were all sentenced to the Training Centre. A Training Centre Order entails a detention period of between six months to three years and the length of sentence depends upon the offenders’ performance. The typical sentence length is 18 months.

Most jurisdictions have established correctional institutions similar to Hong Kong’s training centre to detain children who have committed serious crimes. Article 17.1 of the UN Standard Minimum Rules for the Administration of Juvenile Justice (the Beijing Rules) allows the gravity of the offence and the needs of society to be taken into account when sentencing children. Given that national security offences including subversion are clearly serious crimes, it is possible that custodial sentences could therefore comply with international human rights standards.

However, the true concern regarding child sentencing under the NSL is that the stipulated minimum sentence makes no exception for children. Under the local laws of Hong Kong, children under 14 should not be sentenced to imprisonment and young persons under 21 should not be sentenced to imprisonment when there are other appropriate sentencing options. The NSL, however, does not provide any exception or mitigation mechanism for children in applying the minimum sentence. While local legislation and case law could possibly supplement the NSL in other areas (see Ma Chun Man at [66]), the minimum sentence expressly stipulated under NSL will nonetheless prevail over local laws (NSL Article 62).

For the offence of inciting subversion, Article 23 of the NSL stipulates a minimum sentence of at least 5 years imprisonment if the circumstances of the offence are “of a serious nature”, and less than 5 years imprisonment, detention or restriction if they are “of a minor nature”. In Yuen Ka Him, the judge employed an innovative approach in sentencing the young defendants to alleviate the harshness of these minimum sentence provisions. The judge first held that the overall nature of the offence was serious. However, the judge further determined that the defendants’ young age and immaturity were relevant factors that reduced the offence to one of a minor nature. Such a finding effectively circumvented the minimum sentence of 5 years’ imprisonment which must have been imposed on the child defendants were the case held to be of a serious nature. Whether such an approach will be endorsed by the appellate courts remains to be seen.

On the one hand, it is understandable that there is a need to impose a deterrent sentence to safeguard national security. Yet on the other hand, recent literature suggests that the principle of deterrence should not apply in sentencing children. It is also well established that a more lenient approach should apply in sentencing children more generally. Article 3 of the CRC requires that “the best interests of the child shall be a primary consideration” in all actions concerning children. Imposing 5 years or more of imprisonment upon children is unlikely to be the option most conducive to their rehabilitation. The UN Committee on the Rights of the Child’s General Comment No. 24 (2019) (at [78]) also affirms that “mandatory minimum sentences are incompatible with the child justice principle of proportionality and with the requirement that detention is to be a measure of last resort and for the shortest appropriate period of time”.

It is notable that Article 4 of the NSL stipulates that human rights will be protected in safeguarding national security. Hong Kong’s Court of Appeal has also confirmed its commitment to conform with the Beijing Rules (see SWS [2020] HKCA 788 at [49]). As such, it is hoped that the authorities will soon take proactive steps in safeguarding children’s rights by not subjecting children to NSL’s minimum sentencing regime.

Want to learn more?

• Read: New MOOC on Children Deprived of Liberty: Enacting the Recommendations of the UN Global Study
• Read: Unaccompanied migrant minors and ‘protective custody’ practices in Greece: light at the end of the tunnel?
• Read: Corporate Criminal Liability under Hong Kong’s National Security Law

Whether and to what extent should first aiders bear criminal liabilities for taking part in riots? In a series of judgments arising from the 2019 anti-extradition bill protests, the Hong Kong Courts held that being a first aider per se would not preclude liabilities.

In a recent judgment, 9 defendants were charged with taking part in riot, contrary to section 19 of the Public Order Ordinance (Cap 245). Both the 2nd  and 8th defendants argued that they were first aiders providing urgent medical assistance to people at the scene of violence.

Whilst acquitting the 8th Defendant, the District Court held at §179 that providing first aid care was not necessarily inconsistent with taking part in a riot. It dismissed at §363 the defence’s reliance on the protection for medical personnel as provided in the Geneva Conventions 1949. Citing Article 1(2) of the Additional Protocol II, the Court held that the Conventions did not apply to situations of internal disturbances and tensions, such as riots. Further, the Court rejected the submissions that first aiders at a riotous assembly would be entitled to any common law exemption of liability.

In a similar vein, the Court of Appeal held in HKSAR v Chan Cho Ho at §18 that being a first aider in riot per sewould not constitute an effective defence. The test is whether a defendant has committed breaches of the peace, or has done acts facilitating, assisting or encouraging breaches of the peace by others.

This test was devised by the Court of Final Appeal in HKSAR v Lo Kin Man, the region’s leading case on riot law. The apex court held that the offence of riot was “participatory in nature” which would require a “participatory intent”: –

“Such person must have a participatory intent, intending to take part in the riot by committing, or acting in furtherance of, breaches of the peace together with other participants engaged in riotous activities.”

Whilst the Court concluded that persons who provide back-up support to the participants such as collecting gear, bricks, petrol bombs and other weapons could be liable, it did not discuss the role of first aiders. It was arguably unclear whether the provision of first aid care would suffice for the participatory intent.

Whilst the Additional Protocol II does not apply to internal disturbances and tensions such as riots, it is submitted that the position under international law is nonetheless instructive. As the International Committee of the Red Cross suggested, it is a rule of customary international law that medical personnel exclusively assigned to medical duties must be respected and protected in all circumstances. They lose their protection if they commit, outside their humanitarian function, acts harmful to the enemy. This is because taking direct part in hostilities would violate the principle of neutrality and fall outside the humanitarian function of medical personnel. However, the mere caring for the wounded and sick should not be considered a hostile act.

The same rationale should apply with equal force in the context of riot. Absent any positive acts in furtherance of riot, the provision of medical care per se to persons in situations of violence – regardless of their identities or affiliations – should not expose the first aiders to criminal liabilities of taking part in riot, which carries a maximum sentence of 10 years imprisonment.

As noted by leading commentators, the non-applicability of Geneva Conventions “does not mean that there is no international legal protection applicable to such situations, as they are covered by universal and regional human rights instruments” – such as the International Covenant on Civil and Political Rights, as incorporated into the Hong Kong legal system by virtue of Article 39 of the Basic Law and the Hong Kong Bill of Rights Ordinance (Cap 383), guaranteeing that no one shall be subjected to arbitrary arrest.

With the huge number of riot trials in the pipeline, it is anticipated that the issue of first aider liability would arise again in future trials and appeals. It remains to be seen whether and how the Courts will approach this issue, especially if the defence brings in new perspectives from international law and human rights law.