1. Mr WONG Denis Tak Keung (the Defendant) was charged with, pleaded guilty to and convicted of the following charges: Charge 1 2. ‘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 (LN136 of 2020) (‘NSL23 offence’), and Charge 3 3. ‘Possession of arms without a licence’, contrary to section 13(1) and (2) of the Firearms and Ammunition Ordinance, Cap 238. The Facts 4. During the period between 27 March 2020 and 10 February 2022 (ie a period of slightly more than 21 months), the Defendant called to be posted a total of 25 posts in his 2 Facebook accounts displaying to the general public[1]; 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 day of July. The defendant also left his contact numbers on the posts. 5. On 20 March 2022 a police officer was deployed to go to the 「集英楊武堂」at a TST premises to enrol in the martial arts class. The Defendant was the person in charge and the instructor of the class. There were 5 other students in the class. After the class the Mr Wong was arrested. 6. The following items were displayed on the window shield of the TST premises: (1) 8 photos / posters, which were usually used for supporting the anti-government protesters, eg: • 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. 7. The police also seized 4 piles of handwritten notes from the Defendant’s bag including notes either addressed to other persons (in the names of Tony and Johnny) or no one in particular and attendance records. The contents of these notes can be summarized thus: (1) Proposal to establish a party to promote Hong Kong Independence with force (「香港武獨黨」). (2) The Defendant’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) Although on the surface it was to provide martial arts training to interested participants, his true aim was to recruit students, provide military training, in order to overthrow the government. (4) The trainings included martial arts and the use of weapons. (5) His proposal to set up a Hong Kong Independent troop and a shadow government. (6) The Defendant 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, the Defendant 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 at some point there were 20 students in one class. There were 2 classes on Sundays (between 4 pm and 6 pm & between 6 pm and 8 pm), and 1 class on Mondays (between 7 pm and 10 pm). 8. Items seized in the Defendant’s Residence at Shatin: (1) 2 crossbows (subject matter of the 3rd Charge, the draw weights of which are respectively 26 kg and 28 kg, more than 4 times the legal limit of 6 kg); (2) 3 machetes; (3) 1 axe; (4) 3 swords; (5) 21 arrows; (6) 40 short arrows. 9. The 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 fix-term imprisonment of at least 5 years, but no more than, 10 years. The wordings of the article impose a mandatory minimum of 5 years’ imprisonment for an Upper Tier Offence even after taking into consideration of all mitigating factors and affording whatever discount to which a Defendant is entitled.[2] 10. For the purpose of the present case the wording of NSL 23 refers to the circumstances of inciting others to commit the 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 NSL 23 offence had been committed in a serious or minor manner. Considerations for Determination 11. This Court found they were of a serious nature and, in accordance to the wording of Art 23, the offender should be sentenced to a fixed-term imprisonment of not less than 5 years and no more than 10 years 12. The following factors were most pertinent to the court’s determination: (1) Read as a whole, the posts were designed to rekindle the feelings of discontent and disgust against the Police Force, the Hong Kong SAR and the Chinese Government and advocated the learning and using of physical combat skills and weapons to upset the status quo and overthrow the SAR and the Chinese Government with violence. (2) The use of social media (namely, the Facebook) for committing incitement is an aggravating factor as the Facebook accounts were open to public, and the incitements and subversive messages could also be accessed by ‘friends’ who 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, the Defendant had shown that it was not an impulsive, uncalculated idle act for the simple venting of 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 SAR and the Chinese Government. It also has the effect of creating to the impression that those of the like mind were greater in number than they actually are. The Defendant’s call for a violent revolution is not confined to posting idle suggestions 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, he had 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. The studio where the lessons were held were decorated as a shrine glorifying the supposed martyrs and riotous behaviour. It was a deliberate act on his part to incite those who attended his classes resentment towards the government. (3) The posts were made and on display, for the period of 21 months, during which the Defendant regularly made up and posted messages. There were 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) As on 20 March 2022, there were a total of 5,943 ‘friends’ to his Facebook Accounts. While the ‘friends’ of the two accounts may overlap, 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 of the Defendant’s incitement. According to Defendant’s record, there were 3 classes each week and at least 20 individuals enrolled to his classes with the use of their Facebook names. At the time of the raid, there were 5 students in his class. (5) Despite the naiveté of the idea, proposal and execution, there is no doubt the Defendant had gone to a lot of soul searching to come up with the proposal, plan and manner of execution. He repeatedly used contemporary events taking place in and outside Hong Kong and presented them as manifestations of the evil of dictatorship. The purpose was to nurture the sense of discontent, distrust and disgust of the SAR and the Chinese government. This is a consistent pattern of this behaviour and could not be something impulsive. (6) The basic premises of the Defendant’s proposal was to use violent means to alter the status quo. To that end he advocated the acquisition of the knowledge and use of martial arts, combat technique and weapons such as machetes and crossbows. It is not clear when these weapons would be used but certainly they were ready to be used. (7) There is no evidence that the Defendant acted in concert with other people. Nonetheless his inflammatory and subverting posts did attract approving responses from other netizens. Those who enrolled in his classes all registered under their Facebook names. (8) By posting on the Facebook Accounts (and making them open to the public), the Defendant was obviously aiming at inciting anyone who had an interest in the matter. (9) Apart from the fact that the Defendant 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 the Defendant to make any move to topple the SAR and overthrow the Chinese Government with Violence. (10) There was no evidence that the Defendant’s incitement had any actual impact on the society. However, at that point of time Hong Kong was still shell-shocked from 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 irrational and gullible. The subverting posts added fuel to the long days of discontent. The danger of his blind rage, the suggestion of an apparently workable plan, and the attraction of his simple logic are real and cannot be ignored. Such subverting posts would create disturbances which would affect the route to normalcy and sully the reputation of China as a country and Hong Kong as a rational, free and peaceful society. 13. I found that the circumstances of the commission of the offence falls with the lighter side the spectrum of Upper Tier. And adopt 5 years and 6 months as a starting point. Discussions: Possession of Firearms or ammunition without licence (3rd Charge) 14. The maximum sentence is a level 6 fine and imprisonment for 14 years[3] . 15. In Defendant’s Shatin residence, the police found 3 machetes, 1 axe, 3 swords (all sharpened)[4], 21 arrows, 40 short arrows and the subject matter of the charge: 2 cross-bows. 16. The crossbows were inside a camouflage bag of on the floor of the store room next to the bed room[5] together with 61 arrows. 17. From the circumstances in which the crossbows were found, I have the following observations: • The Defendant pleaded ignorance on the legality of possession the arms. To begin with, ignorance of the law is not a defence, and having considering the whole of the evidence, I concluded 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 Government. 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. The Defendant had also emphasised the importance of weapons in his vision of a revolution and had been making notes to study compare the use and functions of various brands of crossbows. • 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 Defendant’s bed room. It could be easily accessed by the Defendant himself or any visitor. • Unlike rifles which could be pre-loaded, the crossbows could only be loaded before they are put to use 18. The above observations led me to the inevitable conclusion that the Defendant 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. 19. By reasons of the above, I would adopt a 30 months’ imprisonment for charge 3. Sentence Order for the Defendant 20. For Charge 3, the 30 months’ imprisonment is reduced to 20 months in view of his guilty plea. 21. As the facts of the 2 charges were inextricably intertwined, and considerations for matters giving rise to both had also been taken into account in deciding on the sentencing order for Charge 1, to avoid punishing the Defendant twice on the same set of facts, and to take into account of the Totality Principle, I order the sentence of the charge 3 to run concurrent with that of Charge 1. Other Mitigating Factors for the Defendant 22. The Defendant is aged 60, married in Canada. He also had a son from a relationship, now living in China. He had a clear record. It had no psychiatric psychological issues. The Background Report and his lawyer gave a detailed account of his life. 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 the United States. He had different few stints of working and living in Canada, the United States and China. He returned to Hong Kong in 1997 ‘with a view to contribute to the future of Hong Kong and China’. 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 him mired 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. 23. His family, the social worker, friends and pupils all spoke well of him in their written pleas for clemency. 24. Strictly speaking, these letters do not contain any valid reasons for clemency. He was a grown man and must have known what he was promoting and attempting to implement would post danger to the stability of the society. 25. According to the wording of the NSL legislation, the Defendant could not avail himself to the customary 30 per cent discount on his guilty plea: to do so would reduce the sentence order below the minimum 5 years fix-term imprisonment. 26. After taking into account of all the circumstances, I reduce his sentence from 5 years and 6 months to 5 years. [1] His Facebook Accounts are global, meaning can be viewed by all [2] Subject to the effect off the extenuating circumstances, if any, enlisted in NSL 33(1). See HKSAR and LUI SAI YU CACC 61/2022, [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. [3] Section 13(2) of Firearms and Ammunition Ordinance, Cap 238 Fire arms and Ammunition Ordinance, Laws of Hong Kong [4] See para 15 of the admitted facts, and the photos at Annex E referred to. [5] As shown in the picture, D1’s residence was a small unit with 2 rooms situated side by side