‘Uttering seditious words’ was one of several offences in the Crimes Ordinance that were based on the British concept of ‘seditious intention’.  Since 2020, these offences have been revived from slumber to prosecute social network services administrators and users, book publishers, online media editors, and Jimmy Lai, the proprietor of Apple Daily.

Tam’s appeal against the convictions was therefore much awaited.  The ‘seditious speech’ offence has been regarded as ‘extreme’, ‘colonial’, ‘vague’ and ‘disproportionate’ [para 163]. Many common law jurisdictions have repealed, invalidated or restricted this type of offence. The United Nations Human Rights Committee has expressed serious concerns about HK’s ‘seditious intention’ offences [paras 15,16]. Moreover, the Privy Council’s advice in Vijay Maharaj v A-G of Trinidad and Tobago (October 2023) was that the principle of legality would limit ‘seditious intention’ offences with ‘a requirement that there must be an intention to incite violence or disorder’ [para 47].

The HK Court of Appeal’s unanimous judgment of 7 March 2024 dismissed Tam’s appeal. The Court reviewed HK legislative history and 1950s HK case law and held that the HK colonial legislature decided ‘consciously’ back in 1938 against including an intention to incite violence as a necessary ingredient of the statutory ‘seditious intention’ offences [paras 81, 82].  Therefore, Vijay Maharaj was not applicable. Further, the Court considered that the definition of ‘seditious intention’ was legally certain: ‘seditious intention’ had to be ‘broadly framed’ to safeguard national security in a timely and effective manner [para 121]. The ‘ordinary language’ used to delineate the offences had ‘a sufficiently and clearly formulated core’ (on which the Court expounded its own understanding) that enabled their application to be foreseeable [paras 122-126].  Furthermore, the Court held that the offences satisfied a four-step proportionality test similar to that currently used in the English courts. In the Court’s view, the delineation of the seditious intention offences did not inhibit open, frank, and full dialogue and debate on social issues. Coupled with the Secretary for Justice’s role in authorizing prosecutions, the Court concluded that the offences were ‘no more than necessary to accomplish [their] legitimate aim’ of safeguarding national security and public order [paras 138-142].

The Court of Appeal judgment is troubling. It not only omitted the critical piece of legislative history, spotted by Professor Johannes Chan, that the 1938 statutory ‘seditious intention’ offences were ‘based upon a model Ordinance compiled by direction of the [British] Secretary of State’ (which tended to explain the drafting similarities across common law jurisdictions [pp 930-931]), but also discounted both the Siracusa Principles as ‘plainly outdated’ [para 136], and the comparative jurisprudence and law reform reports presented as ‘overseas materials … quite different from [our setting]’ [para 130].

Although Tam has appealed the Court of Appeal judgment, this offers little comfort. The offences in the Crimes Ordinance have been replaced by provisions in the Safeguarding National Security Ordinance, enacted in March 2024. The new Ordinance makes clear that the new ‘seditious intention’ offences serve to safeguard Chinese national sovereignty, security and development interests, using the same ‘ordinary language’, without having to prove intention to incite another person to cause public disorder or act violently.