Press Summary (English) Press Summary (Chinese) DCCC 798/2022 [2023] HKDC 168 IN THE DISTRICT COURT OF THE HONG KONG SPECIAL ADMINISTRATIVE REGION CRIMINAL CASE NO 798 OF 2022 --------------------------- --------------------------- ----------------------------------------- REASONS FOR SENTENCE ----------------------------------------- 1. In these proceedings there are 2 defendants and a total of 5 counts in the indictment. 2. Mr WONG Denis Tak Keung (D1) was charged with, pleaded guilty to the following counts: 1st Charge (‘NSL23 offence’) Incitement to subversion, contrary to Articles 22 and 23 of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (LN 136 of 2020) Particulars of Offence WONG Denis Tak Keung, between 1 July 2020 and 20 March 2022, both dates inclusive, in Hong Kong, incited other persons to organise, plan, commit or participate in the following act or acts by force or threat of force or other unlawful means with a view to subverting the State power, namely:- (1) overthrowing or undermining the basic system of the People’s Republic of China established by the Constitution of the People’s Republic of China; and/or (2) overthrowing the body of central power of the People’s Republic of China or the body of power of the Hong Kong Special Administrative Region. 3rd Charge Possession of arms without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. Particulars of Offence WONG Denis Tak Keung, on 20 March 2022, Flat 6, 4th Floor, Golden Comfort Court (Block D), Golden Lion Garden Phase II, Nos 1-3 Kak Tin Street, Sha Tin, New Territories, in Hong Kong, had in his possession arms, namely two crossbows, without a licence. 3. Ms CHEUNG Man Chee Iry (D2) was charged with and pleaded guilty to the following count: 5th Charge: Possession of arms without a licence, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. Particulars of Offence CHEUNG Man Chee Iry, on 20 March 2022, at Flat 2, 13th Floor, Block N, Sunshine City, No 8 On Shing Street, Ma On Shan, New Territories, in Hong Kong, had in her possession arms, namely five crossbows, without a licence. 4. Both defendants confirmed their admission to the facts stated in the Amended Summary of Facts and were convicted of the respective charges against them. Upon the prosecution’s application the rest of the charges[1] they pleaded not guilty to were ordered to remain on the court file and not to proceed without leave. 5. Most of the facts admitted by both defendants were directly related to the charges of which D1 was convicted. Counsel for D2 sought to persuade this court to ignore them and concentrate on the part of the admitted facts related exclusively to Charge 5. However, this court takes the view that the facts, as read out and admitted by both defendants in open court were the background and part of the whole circumstances of the charge in question; they are essential for assessing D2’s criminal liability in respect of the charge. Nothing can exist in a vacuum, to gauge an individual’s criminal liability it is necessary to consider the whole of the circumstances leading her conviction. The Facts of the case The Background 6. This case involved the use of ‘Facebook’, a social networking app in which one can open an account to write/publish statements, share photos, posters and videos, post links to news or other internet links, the contents of such accounts can be accessible to any registered individuals or groups of individuals (known as ‘friends’) or, open to the general public. 7. As on 20 March 2020, D1 had been the registered holder of following Facebook accounts. (1) Denis WONG (with 4,042 friends); (2) Tommy WONG (with 1,901 friends). The Posts 8. During the period between 27 March 2020 and 10 February 2022 (ie a period of slightly more than 21 months), there were a total of 25 posts in these 2 Facebook accounts displaying to the general public[2]; inviting other persons to: (1) join his martial arts class in the name of 「集英楊武堂 殺鬼隊訓練班」; (2) have martial arts training in his class – with videos to demonstrate martial arts skill; (3) learn how to use weapons in his class – with photo of a person holding crossbow and arrow; (4) join his troop; and inciting other people to (5) overthrow the Communist Party of China by violent revolution after sufficient training: (6) overthrow or undermine the Government of the Hong Kong Special Administrative Region by violent revolution; (7) establish a shadow government and an independent Hong Kong State – with a picture of a black flag marked with “Independent”; (8) support and encourage general public to resist the authority (with photo of the culprit who attacked and used a knife to stab / wound a police officer on 1 July 2021 and photo of machetes attached); (9) to take revenge action, including violence and war, against the Hong Kong Police Force and the Communist Party of China on special dates such as 21st July. 9. D1 also left his mobile phone numbers in the posts for anyone interested to contact him by phone, WhatsApp or mail. 10. All but one of the above messages[3] continued to be published and displayed on the Facebook pages on or after 1 July 2020, when the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region (‘SNL’) was enacted and came into force. Police Operation and Arrests 11. Acting on the information in the above posts, on 20 March 2022, a police officer was deployed to go to the 「集英楊武堂」at 1/F Chong Tak Building, 33-39 Austin Road, Tsim Sha Tsui (“TST Premises”) to enrol in the martial arts class. D1 was the person in charge and the instructor of the class. D2 was one of the 5 other participants in the class. 12. Subsequently the police team raided the TST Premises and arrested D1 and D2 for the offence of sedition. It was discovered that D1 had 2 mobile phones, each of which was logged in one of the above described Facebook accounts. 13. Under caution D1 admitted he was the instructor of martial arts class and the account user of the 2 Facebook Accounts in question. Exhibits seized in the TST Premises 14. The police seized the following items which were on display on the window shield of the TST premises: (1) 8 photos / posters, which were usually used for supporting the anti-government protesters:- • Photo of CHOW Tsz Lok (周梓樂); • Photo of CHAN Yin Lam (陳彥霖); • Photo of LEUNG Kin Fai (梁健輝) (who committed suicide after using knife to stab and wound a police officer), etc. • Photo of a protester at Tsuen Wan riot; • Photo of a protester injured at Sai Wan Ho riot; (2) 5 electric candles 15. The police also seized 4 piles of handwritten notes from D1’s bag either addressed to other persons (in the names of Tony and Johnny) or no one in particular. There were also attendance records. The contents of notes can be summarized thus: (1) Proposal to establish a party to promote Hong Kong Independence with force (「香港武獨黨」). (2) D1’s aim was to overthrow the Hong Kong Special Administrative Region Government, promote Hong Kong Independence and establishment of a Hong Kong Independent State. (3) D1’s operating a martial arts class on the surface was to provide martial arts training to interested participants, but his real aim was to recruit students, provide them with military training in order to overthrow the government. (4) The training included martial arts and the use of weapons. (5) His proposal to set up a Hong Kong Independent troop and a shadow government. (6) D1 proposed to look into the following matters and emphasized: (i) Training; (ii) Self-reliance / received overseas support; (iii) Set up temporary Hong Kong Government; (iv) Constitution of Hong Kong State; (v) Protection of Hong Kong sovereignty and citizen; (vi) Collusion with elements in Taiwan, Tibet, Uyghurs, etc; (vii) Establishment of military school; (viii) Declare war with the Communist Party in Hong Kong and the Mainland; (ix) Seek assistance from foreign countries; (x) Provide support to other overseas anti-government activities. (7) For the troops in Hong Kong, D1 proposed to: (i) Provide training to soldiers; (ii) Increasing the military power; (iii) Protect the Hong Kong sovereignty and citizen; (iv) Destroy the People’s Liberal Army in Hong Kong (v) Maintain loyalty; (vi) Protect the worldwide value. (8) A list of traditional martial arts techniques, weapons / equipment, including swords, knives, helmets, protective vests and shields. (9) A detailed examination and comparison of function, power and price of different brands of cross-bows (draw-weight ranging from 15 kgs to 80 kgs); (10) The attendance records showed that there were 20 students enrolled in one class. There were two classes on Sundays (between 4 pm and 6 pm & between 6 pm and 8 pm), and one class on Mondays (between 7 pm and 10 pm). 16. The Police seized the following items in D1’s Shatin Residence: (1) 2 crossbows (subject matter of the 3rd Charge, the draw weights which were respectively 26 kg and 28 kg); (2) 3 machetes; (3) 1 axe; (4) 3 swords; (5) 21 arrows; (6) 40 short arrows. 17. The Police seized the following items in D2’s at Ma On Shan Residence: (1) 5 crossbows (subject matter of the 5th Charge, the draw weights of which ranged from 17 to 32 kgs); (2) 3 machetes; (3) 41 arrows; (4) 80 short arrows; (5) A number of arrow-heads. 18. Pursuant to section 2 of the Firearms and Ammunition (Declaration of Arms) Regulations Cap 238D and Part I of the Schedule, “a crossbow with a draw weight of more than 6 kilograms” is defined to be arms which required licence for their possession. The defendants had no licence to possess the arms found in their premises. Discussions: Incitement to Subvert (‘SNL 23 Offence’) 19. Part 1 to 4 in Chapter II of the Law of the People’s Republic of China on Safeguarding National Security in the Hong Kong Special Administrative Region in Schedule to the Promulgation of National Law 2020 (LN 136 of 2020) respectively laid down four types of offences against National security: namely secession, subversion, terrorist activities and collusion with a foreign country or with external elements to endanger national securities. Each part sets out the corresponding inchoate offences and the penalty to be imposed. 20. Article 22 of Part 2 (NSL 22) laid down the substantive offence of subversion of the State power (SNL 22 Offence). Article 23 (NSL 23) deals with the inchoate offence of assisting the commission of the subversion offence: “A person who incites, assists in, abets or provides pecuniary or other financial assistance or property for the commission by other persons of the offence under Article 22 of this Law shall be guilty of an offence.” And proceeds to establish a two-tier penalty regime in the following terms: “If the circumstances of the offence committed by a person are of a serious nature, the person shall be sentenced to fixed-term imprisonment of not less than five years but not more than ten years; if the circumstances of the offence committed by a person are of a minor nature, the person shall be sentenced to fixed-term imprisonment of not more than five years, short-term detention or restriction.” 21. Although the appellate courts has yet the opportunity to consider the interpretation of the offence and penalty laid down in NSL 23, the learned appeal judges in the case of HKSAR v Ma Chun Man[4] (the facts of which were related to the offence of inciting others to commit a NSL 21 offence), stated the followings: “Regardless of whether it is the offence of “secession” or “subversion”, both provisions are of utmost importance in upholding national unity and territorial integrity, as well as the foundation of the constitutional system and the legal status of the Hong Kong Special Administrative Region as an inalienable part of of the People’s Republic of China under the “One Country, Two Systems” initiative.” [5]. 22. Further, by reason of the fact the offences of secession and subversion are both in the same Chapter of the NSL legislation, and both NSL 21 and NSL 23 adopt exactly the same wording in establishing the 2-tier sentencing regiment, it would be safe to assume that the principle as expounded by the learned Judges of the Appeal Court in relation to NSL 21 would be applicable to NSL 23. 23. On his plea and admission of facts summarised above D1 was convicted of the offence under NSL 23 (namely, inciting subversion of State power), the only issue to be determined is whether the circumstances of the offence committed were of a serious nature or a minor nature. In the latter case (‘the Lower Tier”), the court would have to order some form of detention or restriction up to 5 years. In the former case (the Upper Tier) this court has to order a fixed-term imprisonment of at least 5 years, but no more than 10 years. The wording of the article imposes a mandatory minimum of 5 years imprisonment for an Upper Tier Offence even after taking into consideration of all mitigating factors and whatever discount to which the defendant would have entitled[6]. 24. Therefore, the undersigned has to determine • Whether the present case falls into the ‘serious’ or ‘minor’ category; • On which part of the spectrum in that category the present case lies; • The appropriate sentence order that corresponds with the gravity of the case. 25. The learned counsel for D1 submitted that NSL 22 sets out the substantive offence of Subversion, NSL 23 sets out the inchoate offence of incitement and the accessory liability for a completed NSL 22 offence and contended that D1 was charged with the Inchoate offence of incitement, the fact that the substantive offence had not been committed would be a ‘powerful mitigating factor’ to consider whether the NSL 23 had been committed in ‘circumstances of a serious nature. 26. I do not agree that this is a proper reading of the NSL legislation. Each part of Chapter II sets out 2 related but distinct offences and the range of sentence the court has the power to impose; in both cases a 2-tier regime for sentencing by referring to seriousness or otherwise of the circumstances of its commission. 27. For the purpose of the present case the wording of NSL23 refers to the circumstances of inciting others to commit and NSL 22 offence. That the substantive offence had not been completed may well be a mitigating factor but it is not a pivotal element in deciding whether the NSL23 offence had been committed in circumstances that are serious or minor manner. Considerations of Determination 28. The Court of Appeal in the Ma Chun Man case[7] sets out the process of determination: the prime focus on the offender’s act, the actual consequences, potential risks and possible influence entailed. The court is required to carefully consider the circumstances as whole, identify, assess, accord appropriate weight to individual factors present and make the determination on the basis of the whole case. After making the determination, the court would then determine the offenders’ culpability in the case and decide on appropriate sentence by applying the general sentencing principles. The Court of Appeal further provides a non-exhaustive list of 10 factors which the court should take into consideration in making the determination. 29. From the facts and evidence before me, the followings are in my view most relevant to my determination: (1) The context in which the offence was committed The subverting posts were made and published during the time when the 2019 social events and violent protests seemed to be on the decline. The posts were first made on 27 March 2020, continued to be displayed and published after coming into effect of the NSL on 1 July 2020 and until his arrest on 20 March 2022. Read as a whole, the posts were designed to promote and rekindle the feeling of discontent and disgust against the Hong Kong Police Force, the SAR and the Chinese Government. They advocated the learning and using of military combat skills and weapons to upset the status quo and overthrow the SAR and the Chinese Government with violence. (2) The Modus Operandi The use of social media (namely, the Facebook) for committing incitement is an aggravating factor[8], as D1’s incitements and subverting messages could be accessed by anyone or ‘friends’, all can share the same posts with others and repost them by making screen shots of the same. By opening 2 different accounts in the Facebook, D1 had shown that it was not an impulsive, uncalculated idle act of venting his personal grievance against the status quo. It was a deliberate move on his part to double his audience, to solicit, enlist and persuade others to join in his act of defiance against the Police Force, the SAR and the Chinese Government. It also created impression that those of the like mind were greater in number than they actually were. Furthermore, D1’s call for a violent revolution is not confined to posting subverting slogans in his Facebook Accounts: there were also solid plans of overthrowing the government, setting up an independent state, collusion with other dissidents, and seeking assistance from foreign countries. Although the feasibility of their implementation is doubtful, the fact that he had made them, and have gone about renting a place, setting up a studio for martial arts lessons and gathering information about, stockpiling weapons and arms to implement his plan for a violent revolution to overthrow the SAR and Chinese Government indicated his actual intention of implementation. The studio where the classes were held were decorated as a shrine glorifying the supposed martyrs and riotous behaviour during 2019. It was a deliberate act on his part to incite those who attend his classes resentment towards the government and the place. (3) Number of times and Duration The posts were made and on display during the period between 27 March 2020 and until his arrest on 20 March 2022, for a total period of 21 months. During this period D1 regularly wrote and posted messages in his two Facebook accounts. There was a total of 39 posts of subverting nature, advocating the idea of a violent revolution to overthrow the SAR and Chinese Government, soliciting, discussing and encouraging those of a like mind, criticizing those who took a different view from his. (4) Scale As on 20 March 2022, there were a total of 5,943 ‘friends’ to his Facebook Accounts. While this court will make allowance for the fact that the ‘friends’ of the 2 accounts might overlap, on the other hand, any of the friends can either share the posts with other Facebook accounts or repost the messages by using the screen shot function. Once the messages are posted in the social media, like a virus there is no way to contain their proliferation. There is no way to ascertain the exact scale D1’s incitement and to gang the extent of damage they would cause. According to D1’s own records of attendance, there were 3 classes each week and at least 20 individuals enrolled in his classes under their Facebook names. At the time of the raid, there were 5 students in his class including D2. (5) Premeditation Despite the naiveté of his idea, proposal and execution, there is no doubt D1 had gone to a lot of soul searching to come up with the proposal, plan and manner of execution. He repeatedly used contemporary rumours based on alleged police brutality and government conspiracy and, in one case, making a martyr of a person who committed suicide after trying to kill a police officer, and presented them as manifestations of the evils of the SAR and Chinese Government. His purpose was to nurture the sense of discontent, distrust and disgust of the SAR and the Chinese government. This is a consistent pattern in such behaviour and could not be an impulsive act. (6) Violence The basic premise of D1’s proposal was to use violent means to alter the status quo. To that end he advocated the acquisition of knowledge on the use of martial arts, combat technique and weapons such as machetes and crossbows. (7) Accomplice There is no evidence that D1 acted in concert with other people. However, his inflammatory and subverting posts did attract approving responses from other netizens. As those who enrolled in his classes all registered under their Facebook names, they obviously had come into contact with D1 though same social media. (8) The target and size of incitement, and the potential influence on the same By posting on the Facebook Accounts (and making them global), D1 aimed at inciting anyone who had an interest in the matter. (9) The actual result of the incitement Apart from the fact that D1 actually started to implement his plan by giving classes as a preliminary step to start a violent revolution, there is no evidence of any other person motivated by D1 to make any move to topple the SAR and overthrow the Chinese Government with Violence. (10) The Actual and Potential influence of the Incitement There is no evidence that D1’s incitement had any actual impact on the society. However, at that point of time, the Society of Hong Kong was still shell-shocked by the social events that took place in the latter half of 2019, it would not be wrong to say that a section of the population was still quite irrational and gullible. The pandemic added fuel to the long days of discontent[9] The danger of his blind rage, the suggestion of an apparently realizable plan, and the simple logic could be appealing to certain segments of the society. It could create disturbances which affect the route to normalcy and sully the reputation of the China as a country and Hong Kong as a rational, free and peaceful society. 30. D1’s subverting posts and the actual steps taken to implement them would have effect on certain segment of the society. It would potentially harm the society as a whole. 31. I found that the circumstances of the commission of the offence falls with the lighter side the spectrum of the Upper Tier. I would therefore adopt 5 years and 6 months as a starting point. Discussions: Possession of Firearms or ammunition without licence (3rd and 5th Charge) 32. The maximum sentence is a level 6 fine and imprisonment for 14 years[10] . 33. As was pointed out by the learned Counsel for D2, there is no sentencing tariff for possession of firearms when the subject matter is crossbow. 34. However, the Court of Appeal in a case of possession of an arsenal of firearms (including a rifle, revolvers, and over 2000 rounds of ammunitions) in a public estate unit did identify several factors for consideration. Although the facts of that involved a much more dangerous equipment in terms of its range and potential harm to lives and property, in my view crossbows, for their ease of use and availability are still very dangerous especially in the context of a densely populated city like Hong Kong. Charge 3 35. In D1’s Shatin Residence, the police found 3 machetes, 1 axe, 3 swords (all sharpened)[11], 21 arrows and 40 short arrows together with the subject matter of the charge: 2 cross-bows. 36. The crossbows were inside a camouflage bag on the floor of the store room next to the bed room[12] together with 61 arrows. 37. From the way the crossbows were found together with the admitted circumstances, I have the following observations:- • D1 pleaded ignorance in his mitigation letter on the legality of possession the arms. To begin with, ignorance of the law is not a defence, • From the whole of the evidence, it is apparent that the arms and weapons were acquired not for their aesthetic value, but for the purpose of implementing what he advocated, namely, overthrowing the SAR and the Chinese Government with violence. • He had been extolling the importance of training in martial arts, military combat for the violent revolution, to that end he advocated and had offered martial arts training to convert the general public and those who already were of the like mind. • He had also suggested the importance of weapons in his vision of a revolution. D1 had also been making notes to study and compare the use and functions of various brands of crossbows and other weapons. • The arrows, essential for the use of crossbows as weapons, were placed conveniently together with the crossbows in a camouflage bag. They could be easily transported, assembled and put to use. • The bag was found on the floor of the storage room next to the bed room in D1’s residence. They could be easily accessed by D1 himself or any visitor. Unlike rifles which could be pre-loaded and required some sort of training for their use, the mechanism of crossbows are more simple and could only be loaded before they are put to use, so the fact that the cross-bows were not loaded is not a relevant consideration. 38. The above observations led me to the inevitable conclusion that D1 had possession of the crossbows for his own use and/or the use of others for the purpose of a military uprising against the HKSAR and the Chinese Government. 39. By reasons of the above, I would adopt a 30 months’ imprisonment for charge 3. Charge 5 40. D2 was arrested in the TST premises. She was one of the 6 participants of the Martial Arts class led by D1. 41. The window sill of the classroom was decorated like a shrine: with pictures 3 persons who were considered to be martyrs of the social events and electric candles. D1’s record of attendance used the Facebook names to identify his students. 42. In D2’s Ma On Shan residence, the police found 3 machetes, 1 axe, 41 arrows, 80 short arrow, a number of arrow-heads, miscellaneous items and the subject matter of the charge: 5 cross-bows. The drawing weights of the crossbows ranged from 17 to 32 kgs, ie 3 to 5 times above the legal limit. 43. The items were found on or in a white cupboard in the living room: (i) Stacked on top of the cupboard in the living room were three camouflage bags: Bag 1 1 black crossbow chamber; 1 green camouflage crossbow; 1 green camouflage crossbow handle; 1 black coloured scope; 4 arrows; 1 black coloured torch; 8 pieces of accessories. Bag 2 One green camouflage crossbow handle; One green camouflage crossbow; One black coloured scope; 10 long arrows; 40 yellow coloured arrow heads inside a transparent bag; 40 red coloured arrow heads inside a transparent bag; 4 silver colouared arrowhead; 1 tube of white glue; 1 instructions booklet; 16 pieces of accessoryes. Bag 3 1 green camouflage crossbow; 1 green camouflage crossbow handle; 1 black coloured scope. (ii) Hung on the handle of the cupboard: one black coloured crossbow; (iii) Inside the compartment to the right were 2 large paper boxes: Paper box 1 (Brown in colour) 1 black coloured composite bow; 1 white glue tube; 10 pieces of accessories; 2 instructions booklets[13]; 1 pieces of target papers. Paper Box 2 (white in colour) 15 pieces of long arrows; 4 arrow heads; 1 black coloured arrow head; 18 black coloured plastic arrow head; 2 pink coloured glue tubes; 17 pieces of accessories. (iv) Inside a drawer of a brown wooden cupboard in the living room 3 knives with shields; 1 machete[14]. (v) Near the sofa in the living room was another green camouflage bag containing: 1 black coloured crossbow; 1 black crossbow handle; 2 black coloured scope; 12 long arrows; 12 black coloured arrow heads; 13 pieces of crossbow accessories. Discussions of D2’s culpability Charge 5 44. In assessing her culpability, the undersigned is mindful of the fact that D2 has no past record of transgression. In these proceedings she is not charged with any NSL offences. There is no direct evidence that she is party to, or had knowledge of D1’s subverting intentions. 45. The learned counsel submitted that D2 joined D1’s classes for having some exercise. She helped to store the offending articles as a favour for D1. 46. I found her plea of ignorance was inherently impossible The class she joined were advertised as for martial arts training with the explicit purpose to overthrow the SAR and the Chinese Government in D1’s Facebook Accounts. The students in D1’s attendance records were identified by their Facebook names. 47. Furthermore, I note that most of the crossbows (except for one that was hung on the outside the cupboard) were kept in purpose built camouflage bags. Each of the 3 bags had all that were required to assemble and put to use the crossbows. They can be easily accessed could easily be taken anywhere, assembled and put to use quickly. 48. Furthermore, in a residential tenement, I cannot really see any use for machetes and axes, nor do I see the items enlisted had anything to do with the discipline of Tai Chi or for exercise purpose. 49. It had also been suggested by Counsel that the other weapons (namely the tomahawk machete and axes) were in fact used by D2 for camping. Unless she plans to explore in the Amazon jungle, I cannot see they are of any use in normal outdoor activities in Hong Kong. 50. In addition, the classroom where the class was held was decorated like a shrine to honour the riotous movement in 2019 and the supposed “martyrs”. 51. All these factors led me to the inevitable conclusion that D2 was well aware of D1’s intention and had been complicit in keeping the crossbows for her own use or for the use of others. 52. I accept that as compared to firearms, crossbows are less lethal in terms of their range, speed and power to cause damage. They are nonetheless very dangerous weapons and unlike firearms, they require little training for using them to cause injury to life and damage to property. 53. Taking into account of the number of crossbows, their draw weight, and the circumstances in which they dare found to be in D2’s possession, I found that it is necessary to impose a deterrent sentence. I would therefore adopt 24 months’ imprisonment as a starting point. Sentence Order for D1 54. For the reasons stated above, I have adopted 5 years and 6 months as a starting point for Charge1. For Charge 3, the 30 months’ imprisonment is reduced to 20 months to take into account of his guilty plea. 55. As the facts of the 2 charges were inextricably intertwined, and considerations for matters giving rise to Charge 3 had also been taken into account in deciding on the sentencing order for Charge 1, to avoid punishing D1 twice for the same set of facts and to take into account of the Totality Principle, I order that the sentence of the 3rd charge to run concurrent with that of Charge 1. Mitigating Factors for D1 56. D1 is aged 60 and married. His wife is living in Canada. He had a son from another relationship, now living in China. He had a clear record. The Background Report and his lawyer gave a detailed account of his life. 57. Despite his humble background, with the support of his parents and religious organizations he was affiliated to, he managed to complete his tertiary education in Canada and then the United States. After that he had different stints of working and living in Canada, the United States and China. In 1997 he returned to Hong Kong with a view ‘to contribute to the future of Hong Kong and China’ [15]. 58. Since 2019 he set up a martial arts school to teach Tai-Chi and also took up part-time jobs to supplement his income. He claimed the onslaught of the pandemic had mired him in financial difficulties as the school could not operate and the part time jobs dried up. He blamed it on the Government’s pandemic control policy. That and his sympathy for the ‘victims’ of the 2019 social events drove him to vent his discontent in the Facebook. His family, the social worker, friends and pupils all spoke well of him in their written pleas for clemency. 59. By order of this court, he had been examined by a psychiatrist and a psychologist. Neither detected mental or psychological issues. 60. Strictly speaking, these letters do not contain any valid reasons for clemency. He is a grown man and must have known what he was promoting and attempting to implement posted danger to the stability of the society. 61. By reasons of the wording of the NSL legislation, he cannot avail himself to the customary 30 per cent discount by his guilty plea. Having taken into account his plea and absence of previous transgressions I therefore reduce his sentence from 5 years and 6 months to 5 years. Mitigations for D2 62. D2 is aged 62, single. She had been the caregiver and financial supporter of her mother before the latter succumbed to cancer in 2020, since then she had been living alone. She led an uneventful life, working as a marketing manager, making her way up through her performance at work despite the lack of higher education. She resigned after she was arrested for the present case. The undersigned accepted the veracity of the pleas for clemency from her employers, colleague and her other siblings and that she is held in high regard by them. 63. In the Probation Officer’s report, D2 claimed that she was asked by her Tai Chi master D1 to store a bag and a crossbow in her residence. Apart from the latter (presumably she referred to one hung in plain sight in the living room), she had no clear idea what the contents were. In short she had been used by D1. 64. According to the Prosecution, four of the crossbows seized in D2’s residence had been tested by police officers[16] , it was confirmed that the arrow discharged from a distance of 7 metres could pierce through corrugated cardboards and the rubber boards behind. They were indeed very dangerous weapons. 65. From the evidence viewed as a whole, I consider 24 months a proper starting point. This will reduce to 16 months’ imprisonment to reflect her guilty plea. [1] Namely 2nd and 4th Charge, against D1 and D2 respectively, both of ‘Possession of offensive weapons with intent, contrary to section 17 of the Summary Offence Ordinance, Cap 228. [2] His Facebook Accounts are ‘global’, meaning can be viewed by all [3] Namely the post dated 27 March 2020 at 1752 hours in the account of Denis Wong, of which a picture of a sword had been displayed, in which the defendant also claimed that a concealed weapon when ‘move speedily can beat a gun’ and invited anyone interested in learning martial arts and self defence to contact him by private mail (PM). [4] [2022] 3 HKLRD 246 [5] Supra, see para 70 at p 272: [6] Subject to the effect off the extenuating circumstances, if any, enlisted in NSL 33(1). See HKSAR and LUI SAI YU CACC61/2022, [2022] HKCA 1780, at para 63 of the Judgment of the Hon Poon CJHC. The facts of the case concerned the offence of incitement to secession, contrary to NSL 20 and NSL 21. [7] Supra, at paras 74-76 [8] See HKSAR and LUI SAI YU, CACC 61/2022 [2022] HKCA 1780, at para 34 of the judgment. [9] As was explained by D1 for posting the subverting messages to summon for a military actions in his mitigation letter: “I was very dissatisfied with the Government policy on the pandemic. I also sympathized with the victis of the anit-amendment movements in 2019” [10] Section 13(2) of Firearms and Ammunition Ordinance, Cap 238 Fire arms and Ammunition Ordinance, Laws of Hong Kong [11] See para 15 of the admitted facts, and the photos at Annex E referred to. [12] As shown in the picture, D1’s residence was a small unit with 2 rooms situated side by side [13] On the paper instructions shown on Annex F [P.21], there warning against shooting arrows at humans and or objects [14] It is noted that in the Background Report, D1 admitted to the Probation Officer that the crossbows were his. [15] As was stated by his defence counsel in his written submission. [16] At the request of the undersigned on the day pleas were entered.