Court of First Instance of the Hong Kong Special Administrative Region

“ Even if we were wrong in finding that the Defendant understood the Slogan to mean Hong Kong Independence and adopted that meaning when displaying the flag, given the Defence Experts’ opinion as elucidated in their report and oral evidence that the Slogan could mean a desire to recover what was lost and the need for a fundamental change in Hong Kong, we are of the view that the Slogan still advocated a political agenda. ”

“ According to Professor Lau, by recounting his dialogue with Wong Toi-yeung, Leung clearly expressed the thought of “building a country of (our) own”; this utterance actually summarized Leung’s political agenda to overthrow the current regime. Leung’s agreement with Wong’s words provided an important message: that is how Leung saw the Slogan and how he saw his political ideal. In addition, the use of the 8 characters by Leung followed the customary usage of these words or compound words in history. ”

“ It was further observed that “An endeavour to persuade or an encouragement is none the less an endeavour to persuade or an encouragement, because the person who so encourages or endeavours to persuade does not in the particular act of encouragement or persuasion personally address the number of people, the one or more persons, whom the address which contains the encouragement or the endeavour to persuade reaches.” ”

“ One of the main issues in this case is the meaning of the slogan “光復香港 時代革命 LIBERATE HONG KONG REVOLUTION OF OUR TIMES” (“the Slogan”) printed on the flag and which was hoisted at the back of the Defendant when he was driving the motorcycle.
41. The Defence, while accepting that in the past, one of the possible meanings of the Slogan might be “Hong Kong Independence”, contended that, at the material time, the Slogan meant different things and there was no one single meaning understood by everyone. ”

“ The Defence further complained that the Prosecution, in this charge of incitement, had not adduced any evidence as to how the said incited act of separating the HKSAR from the PRC was to be carried out. In our view, the absence of such is immaterial to the Prosecution’s case of incitement. Taking the offence of murder as an example, a person is guilty of incitement to murder as long as the actus reus of incitement and the mens rea to incite murder are proved. ”

“ Moreover, the submission seems to have been based on a false premise: there is a protocol to follow when a person is going to engage in terrorist activities. With respect, we do not think there is such a standard procedure. Nor is there any typical conduct which a person aiming to engage in terrorist activities will certainly display. The situation may be so volatile that the person may just need to blend in with the ordinary members of the community or to act perfectly normally at times. We therefore see no force in this argument put forth by Mr Grossman. ”

“ A person is guilty of incitement to commit an offence or offences if
(a) he incites another to do or cause to be done an act or acts which, if done, will involve the commission of the offence or offences by the other ”

“ To raise “光復香港” is to place the person in a legitimate position, and then to decide that the government facing this person is not legitimate, not legal. Therefore, that government must be an enemy or a government controlled by a foreign ethnic group. ”

“ It is untenable that the Defendant did not have the public reaction on his mind.
168. We are also sure that such intimidation was for the purpose of pursuing his political agenda, in that the intimidation was targeted against those in the community who did not support the said political agenda, thereby seeking to contain or suppress counter voices. An intimidation to a section of the public was intimidation to the public all the same for a society is made up of individuals and different groups of such individuals. ”

“ Of the offence of incitement, Tuckey LJ said:
‘The actus reus of the offence is the indictment (sic) by the defendant of another to do something which is a criminal offence. He must do so with the intention that if the other person does as he asks he will commit a criminal offence. That is the mens rea. ”

“ PW8 (PC 12197) saw the Defendant’s motorcycle overtaking the Brown Car, it then accelerated when it was about 1 to 2 metres away from him, finally crashing into him and his colleagues. The speed of the motorcycle was about 10 to 20 kph when it was in the gap, but after it overtook the Brown Car and accelerated towards them, PW8 was unable to assess its speed as it was too short a distance. ”

“ TONG Ying-kit, on the 1st day of July, 2020, at Jaffe Road near the junction with O’Brien Road, Wanchai, in Hong Kong, caused grievous bodily harm to Police Constable 8260, Police Constable 2674 and Police Constable 12197 by driving a motor vehicle, namely a motorcycle bearing registration mark TV 7283, on a road dangerously. ”

“ The Defendant elected not to give evidence but called two expert witnesses, Professor Eliza W Y Lee and Professor Francis L F Lee to give their opinions on the meaning of the Slogan, and a factual witness DW3 (Ms Kong Yuen-kwan) , seeking to establish that the Defendant had a lunch appointment that day.
E. Legal Directions
53. We have given ourselves all the necessary directions when assessing the evidence before us, including the burden and standard of proof; a defendant’s right of silence; his right not to give evidence ”

“ On 1 July 2020, there were protests in the Hong Kong island area and the Defendant drove his motorcycle from Eastern Harbour Crossing to the junction of Jaffe Road and O’Brien Road and at his back was a black flag with the Slogan printed in white in 4 lines from top to bottom. ”

“ PW4 (DPC 13900) was at the checkline junction Luard Road near Jaffe Road. They were there to prevent protesters rushing in to block the road from Luard Road. Exhibit P206C is where he was at the checkline. He saw the Defendant’s motorcycle turning from Lockhart Road into Luard Road towards where their checkline was. They tried to stop him. However, the Defendant ignored their order to stop, increasing the speed and turning right into Jaffe Road.
68. When PW4 first saw the Defendant, the Defendant was about 25 to 30 metres away, turning into Luard Road. ”

“ The route the Defendant took was captured by CCTV cameras along the way. [26]
F.2.1 Checkline 1 at the junction of Hennessy Road and Luard Road
61. According to PW1 (Woman Superintendent W Y Tam) , at about 1525 hours, checklines were formed on the eastbound and westbound carriageways of Hennessy Road [27] which is a 3-lane carriageway. ”