Hong Kong’s Court of Appeal certified three questions in activist Tam Tak-chi’s bid to appeal his sedition convictions to the Court of Final Appeal under section 32(2) of the Hong Kong Court of Final Appeal Ordinance on Wednesday. Section 32(2) requires the mid-level appeals court to determine whether a case involves an important point of law or leads to substantial injustice before the Court of Final Appeal can consider hearing an appeal.
In certifying the questions, the Court of Appeal held that it is in the public interest for the Court of Final Appeal to clarify whether the now-repealed sedition offenses under sections 9 and 10 of the Crimes Ordinance constituted indictable offenses. This also amounted to important points of law since the impugned provisions serve as predecessors of the new sedition offenses under the Safeguarding National Security Ordinance. In addition, the court has to hear other cases involving the impugned provisions.
Tam was the first individual to stand full trial for sedition since Hong Kong’s 1997 Handover from British to Chinese rule. He was sentenced by the District Court on April 20, 2022 to 40 months in prison. He was found guilty of 11 charges, including uttering seditious words, holding or conniving to an unauthorized assembly and public disorder. Tam was also fined HK$5,000.
The Court of Appeal subsequently upheld Tam’s sedition convictions on March 7 and refused to grant him leave to appeal his convictions. The court found that it is not disproportionate to convict a defendant who lacked intention to incite violence. The court also found that the prosecution is not required to prove that Tam’s speech or actions led to violence and that sociopolitical factors should be considered in assessing whether Tam had the intention to incite violence. In addition, the court stated that sedition offenses aim to protect national security and public order, since “Safeguarding national security and preserving public order is indispensable to the stability, prosperity and development of society.”
Tam is also one of 31 pro-democracy activists who pleaded guilty to conspiring to commit subversion under Article 22(3) of the China-imposed National Security Law over his role in subverting state power to gain a controlling majority in the 2020 Legislative Council election and force then-Chief Executive Carrie Lam to resign under Article 52 of the Basic Law. The national security trial of the 31 activists, along with 16 other activists who denied the charges, commenced in the High Court on February 6, 2023. Tam’s lawyer Pauline Leung argued in Monday’s mitigation proceedings that Tam’s sentence should be reduced by at least 20 months since Tam served a 40-month sentence for his sedition offenses.
Correction: A previous version of this article said that the Court of Appeal granted Tam Tak-chi leave to appeal to the Court of Final Appeal. Instead, the Court of Appeal only certified three questions to the apex court, meaning the appeal can still be refused.
