7 Mar 2025法庭線#4609
譚得志煽動案｜黃啟暘：判詞對言論自由採較嚴厲立場 江樂士：國安法、23條與國際標準一致
Former People Power vice-chairman “Fast Beat” Tam Tak-chi was found guilty of 11 counts of sedition under the Crimes Ordinance (the former sedition offence) over remarks including “all black cops’ families should die” and “Liberate Hong Kong, revolution of our times” made at street stalls in 2020. He earlier brought a final appeal, which was unanimously dismissed by the five judges of the Court of Final Appeal on Thursday (the 6th). The Court of Final Appeal held that Hong Kong’s sedition offence is a statutory, rather than common law, offence, and that a common law intention to incite violence is not a necessary element for conviction. It also ruled that the District Court had jurisdiction to hear sedition cases.
Legal commentator Wong Kai-yeung said the ruling reflected a stricter judicial approach to freedom of expression. He also said he was “surprised” that the Court of Final Appeal had referred to the newly enacted Safeguarding National Security Ordinance to support the conclusion that the court should not reach an inconsistent interpretation, although he believed the ruling would have only limited impact on future cases.
Former Director of Public Prosecutions Grenville Cross, meanwhile, described the Court of Final Appeal’s ruling as “impeccable”. He said decisions of the UK Privy Council are not binding on Hong Kong, and that since 1997 Hong Kong has developed its common law in light of local circumstances and its own criminal law. He added that both the National Security Law and the Safeguarding National Security Ordinance expressly provide for the protection of freedoms in accordance with the law, and said Hong Kong had gone to additional lengths to remain aligned with international standards.
人民力量前副主席「快必」譚得志，被指 2020 年擺街站時，發表「黑警死全家」、「光時」等言論， 被裁定 11 項《刑事罪行條例》下的煽動罪成（舊煽動罪）。他早前提出終極上訴，周四（6 日）被終院 5 位法官一致駁回。
終院判詞指，本港煽動罪非普通法罪行，普通法煽暴意圖並非定罪必要條件，又裁定區院有權審理煽動罪。法律評論員黃啟暘認為，裁決反映法庭對言論自由採取較嚴厲立場；又對終院以新訂的《維護國家安全條例》，反證法庭不應達致有矛盾的結論表示「驚訝」，但認為裁決對日後案件影響有限。
前刑事檢控專員江樂士則認為，終院裁決無可挑剔（impeccable），指出英國樞密院判決對港無約束力，香港自 1997 年後根據本地情況及刑事法律發展普通法；又指《國安法》及《維護國家安全條例》均訂明依法保障自由，認為本港已付出額外努力與國際標準保持一致。
6 Mar 2025法庭線#4598
首宗煽動終極上訴 終院一致裁定譚得志敗訴
People Power former vice-chairman Tam Tak-chi, known as “Fast Beat”, was convicted of 11 counts of the old sedition offence under the Crimes Ordinance over remarks including “black cops, die with your whole family” and “Liberate Hong Kong, Revolution of Our Times” allegedly made while he was operating a street booth in 2020. He was sentenced to 40 months’ imprisonment. He brought a final appeal, but the five judges of the Court of Final Appeal unanimously ruled against him on Thursday (6th).
The case concerned whether sedition is an indictable offence that must be tried by a jury in the High Court, and whether an intent to incite violence must be proved. The judgment said the offence of publishing seditious writings could be transferred for trial in the District Court, which had jurisdiction to hear the charge both before and after the National Security Law came into force. On whether an intent to incite violence had to be proved, the judgment said sedition under the Crimes Ordinance is not a common law offence, and the prosecution did not need to prove an intent to incite violence as an element of the offence.
This is the first old sedition offence case to be appealed to the Court of Final Appeal. Some sedition cases are currently being adjourned pending the outcome of Tam’s final appeal. Tam Tak-chi has completed his sentence in this case and is serving a sentence in the separate 47-person case.
人民力量前副主席「快必」譚得志，被指 2020 年擺街站時，發表「黑警死全家」、「光時」等言論， 被裁定 11 項《刑事罪行條例》下的煽動罪成（舊煽動罪），判囚 40 個月。他提出終極上訴，終院 5 位法官於周四（6 日）一致裁定他敗訴。
本案爭議煽動罪是否須在高院由陪審團審理的可公訴罪行、須否證明煽暴意圖。判詞指，「發表煽動文字罪」可移交區域法院審理，區院在《國安法》實施前、後，均有審理該控罪的司法管轄權。至於須否證明煽惑暴力意圖，判詞指《刑事罪行條例》下的煽動罪非普通法罪行，控方毋須證明煽惑暴力意圖作為罪行元素。
本案是首宗上訴至終審法院的舊煽動罪案件，現時有煽動案正押後，待譚案終極上訴結果，而譚得志已就本案服畢刑期，另就 47 人案正服刑。
6 Jan 2025法庭線#4391
譚得志煽動案終極上訴周五聆訊 終院安排5本地法官審
People Power former vice-chairman Tam Tak-chi, known as “Quick B”, was accused of making remarks including “Black cops’ whole families die” and “Liberate Hong Kong, revolution of our times” while operating a street booth in 2020. After trial in 2022, he was convicted of 11 offences, including “uttering seditious words”, and sentenced to 40 months’ imprisonment. He has completed that sentence and is serving a separate sentence in the 47-person case. Tam was granted leave to bring a final appeal against his convictions, disputing whether sedition offences must be tried by a jury and whether an intention to incite violence must be proved. The case will be heard this Friday (10th), and is the first sedition case in Hong Kong to reach the Court of Final Appeal on appeal.
The Judiciary’s website shows that the case will be heard by five local judges: Chief Justice Andrew Cheung, permanent judges Frank Stock, Joseph Fok and Lam Man-hon, and non-permanent judge Patrick Siu Oi Chan. No overseas non-permanent judge will take part. The lineup is the same as in the “Lui Sai Yu case” and the case concerning the Hong Kong Alliance in Support of Patriotic Democratic Movements of China’s refusal to provide information.
人民力量前副主席「快必」譚得志，被指 2020 年擺街站時，發表「黑警死全家」、「光時」等言論，2022 年經審訊後被裁定「發表煽動文字」等 11 罪成，判囚 40 個月，已服畢刑期（另就 47 人案正服刑）。譚不服定罪上訴獲批終極上訴許可，爭議煽動罪須否由陪審團審訊、證明煽暴意圖，案件將於本周五（10 日）聆訊，是本港首宗上訴至終審法院的煽動罪案件。
司法機構網頁顯示，案件將由 5 名本地法官審理，分別為首席法官張舉能，3 名常任法官李義、霍兆剛、林文瀚，以及非常任法官陳兆愷，並沒海外非常任法官參與，名單與「呂世瑜案」、支聯會拒交資料案一致。
10 Jul 2024法庭線#3804
首宗煽動上訴案 譚得志獲批上訴至終院證明書 終院8.14處理申請
Tam Tak-chi, former vice-chairman of People Power, known as “Fast Beat”, was convicted of 11 offences, including publishing seditious words, over remarks including “black cops die with their families” and “Liberate Hong Kong” made while running a street booth in 2020. He was sentenced to 40 months’ imprisonment and has completed his sentence. His appeals against his convictions and sentence were dismissed by the Court of Appeal. Earlier, Tam applied for a certificate to appeal against his convictions to the Court of Final Appeal. In a judgment issued by the Court of Appeal on Wednesday (10th), the court said the charges in the case were predecessors to the new sedition offence under the Safeguarding National Security Ordinance and involved legal points of great and general importance that warranted determination by the Court of Final Appeal. The application was therefore approved. The Court of Final Appeal website shows that a hearing to deal with the application for leave to make a final appeal will be held on August 14, with the judge listed as “To be confirmed”.
人民力量前副主席「快必」譚得志，被指 2020 年擺街站時，發表「黑警死全家」、「光時」等言論，被裁定「發表煽動文字」等 11 罪成，判囚 40 個月，已完成服刑。譚不服定罪及刑罰提上訴，均被上訴庭駁回。
譚得志早前就定罪申請上訴至終審法院證明書，上訴庭周三（10 日）頒判詞指，本案控罪是《維護國安條例》下新煽動罪的前身，涉重大而廣泛重要的法律觀點，值得終院作出裁決，因此批准申請。
終院網站顯示，將於 8 月 14 日處理申請終極上訴許可的聆訊，法官「容後通知」（To be confirmed）。
4 May 2024法庭線#3487
煽動罪三年半．案件進展｜譚得志、《立場》等4案上訴、審訊中 其餘已審結
Over the past three and a half years, 55 people have been charged with sedition under the Crimes Ordinance, in 37 cases. At present, apart from the cases involving Tam Tak-chi, Apple Daily, Stand News and a LIHKG post, which remain at the appeal or trial stage, all other cases have been concluded (see separate article).
In the third feature report, The Witness examines some of the key cases and summarises the latest developments, as well as the speech, conduct and words alleged in the cases to constitute sedition, allowing readers to review and understand how the former sedition offence was applied and how the courts ruled.
過去 3 年半，共 55 人被控《刑事罪行條例》下的煽動罪，分成 37 宗案件。目前除譚得志、《蘋果》、《立場》及一宗連登帖文案仍處上訴及審訊階段，其餘案件均已審結（見另稿）。
在第三篇專題報道，《法庭線》進入部分焦點案件，整理最新進展，以及在案情中被指屬於煽動的言行與字詞，讓讀者回顧、了解舊煽動罪被運用及法庭裁斷的情況。
14 Mar 2024法庭線#3181
首宗煽動上訴案被駁回 據悉譚得志就定罪申上訴至終院
Tam Tak-chi, the former vice-chairman of People Power, known as “Fast Beat”, was convicted of 11 offences, including uttering seditious words, over remarks including “all black cops’ families should die” and “Liberate Hong Kong; revolution of our times” made while operating a street booth in 2020. He was sentenced to 40 months’ imprisonment. Tam appealed against both his convictions and sentence, but both appeals were dismissed by the Court of Appeal last Thursday (7th). It is understood that on Thursday (14th), Tam applied for a certificate to appeal against his convictions to the Court of Final Appeal. The Department of Justice told The Witness in response to an enquiry that it had received notice of the motion for the defendant’s application for a certificate to appeal to the Court of Final Appeal.
The case is the first appeal against a sedition conviction since 1997. One of the issues in dispute is whether the prosecution must prove an intention to incite violence. As the Stand News case involves the same dispute, Judge Kwok Wai-kin previously said he would rule on the Stand News case within one month after the Court of Appeal handed down its judgment in the “Fast Beat case”.
人民力量前副主席「快必」譚得志，被指 2020 年擺街站時，發表「黑警死全家」、「光時」等言論，被裁定「發表煽動文字」等 11 罪成，判囚 40 個月。譚不服定罪及刑罰提上訴，上周四（7 日）均被上訴庭駁回。據悉，譚得志周四（14 日）就定罪申請上訴至終審法院證明書。律政司回覆《法庭線》查詢指，已收悉被告申請上訴至終院證明書的動議通知。
本案是 1997 年後首宗煽動罪上訴案，爭議點之一，是控方須否證煽暴意圖。由於「立場案」涉及相同爭議，法官郭偉健早前指，會在上訴庭就「快必案」頒判詞後一個月內，就「立場案」作出裁決。
11 Mar 2024法庭線#3155
快必煽動案上訴失敗 陳文敏：判詞值得商榷 港毋須參考普通法發展說不通
Tam Tak-chi’s appeal in his sedition case was dismissed. The Court of Appeal ruled that, under the common law, an intention to incite violence is not an essential element for conviction, and said Hong Kong’s offence of having a seditious intention is a “statutory offence” established in accordance with the territory’s special circumstances. It therefore held that developments in other common-law jurisdictions and Privy Council judgments do not apply to Hong Kong.
Johannes Chan Man-mun, an adjunct professor at the University of Hong Kong’s Faculty of Law, said in an interview that the Court of Appeal’s judgment was “open to question”, as it had not clearly explained why it rejected the Privy Council’s view or how Hong Kong was special. He said law reform commissions in at least five countries had studied the issue and found that sedition offences had historically been prone to abuse and used to suppress dissent, asking: “What reason do we have to believe that this will not happen in Hong Kong?”
Chan disagreed with the judgment’s view that the legislation sets out circumstances that do not constitute seditious intention and establishes a clear boundary. He said freedom of expression should not be confined to serious discussion of legal and policy issues, noting that everyday speech could also involve satire of current affairs or an outlet for dissatisfaction with social conditions, and asking: “Should all such speech be subject to restrictions?”
He said that if the aim was to address seditious acts not involving violence, targeted legislation could be enacted, such as legislation dealing with the publication of false information affecting the stock market, rather than using broadly defined sedition provisions to cover them.
譚得志煽動案上訴被駁回，上訴庭裁定普通法下煽暴意圖，並非定罪必要元素，並指本港煽動意圖罪屬「成文法」，且是根據本港特殊情況而定，故其他普通法地區發展及英國樞密院判詞不適用於本港。
港大法律學院客席教授陳文敏受訪時指，上訴庭判詞「值得商榷」，未能清楚解釋為何不採納樞密院的看法，以及香港的特殊性。他指，目前至少 5 國的法改會經研究，指出煽動罪在歷史上容易被濫用、用作打壓異己，「我們有什麼理由去相信香港不會出現這種情況呢？」
對於判詞指條文已列出不屬煽動意圖的情況， 訂出清晰界線，陳不認同，指言論自由不應僅限於嚴肅討論法律、政策問題，指日常生活亦有諷刺時弊、對社會狀況不滿的宣洩性言論，反問「是否這些言論都要受限制？」
他認為，若要針對不涉及暴力的煽動行為，可另訂針對性法例處理，例如發布虛假消息影響股票市場，而非以定義過寬的煽動條文涵蓋。
7 Mar 2024法庭線#3116
首宗煽動案上訴｜譚得志上訴被駁回 上訴庭： 普通法下煽暴意圖 非煽動罪必要元素
Tam Tak-chi, known as “Fast Beat”, former vice-chairman of People Power, was convicted of 11 charges including publishing seditious words over remarks including “May the black cops’ whole families die” and “Liberate Hong Kong, revolution of our times” made while he was operating a street booth in 2020. He was sentenced to 40 months’ imprisonment. Tam appealed against both his convictions and sentence, but the Court of Appeal dismissed both appeals on Thursday (the 7th).
The judgment said the UK Privy Council case cited by the appellant contained only obiter remarks. Seditious intent must be interpreted according to the specific legal framework and social circumstances, and intent to incite violence under common law is not an essential element of the statutory offence of sedition.
The judgment also said the offence of sedition must have sufficient flexibility to address national security threats at the time. The wording concerning seditious intent therefore had to be broad enough to cover different periods and circumstances. It ultimately ruled that the sedition charges had struck a balance between the public interest and freedom of expression, and that it did not appear that anyone, including Tam Tak-chi, a social activist who strongly criticised the government, would bear an unacceptable and onerous burden because of the restrictions imposed on seditious speech.
人民力量前副主席「快必」譚得志，被指 2020 年擺街站時，發表「黑警死全家」、「光時」等言論，被裁定「發表煽動文字」等 11 罪成，判囚 40 個月。譚不服定罪及刑罰提上訴，周四（7 日）均被上訴庭駁回。
判詞指，上訴方所引述的英國樞密院案例，只是附帶意見，煽動意圖必須依據其特定的法律框架及社會狀況作詮釋，裁定普通法下的煽暴意圖，並非法定煽動罪的必要元素。
判詞又指，煽動罪須有足夠靈活性，以應對當下的國安威脅，故煽動意圖的用詞必須足夠寬廣，以涵蓋不同時間、不同境況，最終裁定煽動控罪，在社會利益和言論自由之間已取得平衡，「亦不見得任何人，包括譚得志這位強烈批評政府的社運人物，會因為煽動言論被施加的限制，負上不可接受的嚴苛負擔」。
7 Mar 2024法庭線#3119
首宗煽動案上訴｜黃啟暘：外國縱有成文法亦會考慮普通法發展 江樂士：同意裁決
The appeal in the Tam Tak-chi sedition case was dismissed. The Court of Appeal also ruled that Hong Kong’s sedition offence is statutory, and that under common law, an intention to incite violence is not a necessary element for conviction. It said the sedition provisions had struck a balance between the public interest and freedom of expression.
Legal commentator Edward Wong Kai-yeung i said the Court of Appeal’s reasoning was unconvincing, citing Canada and other jurisdictions where courts consider developments in common law despite having written laws. Wong also said the Court of Appeal’s ruling was binding and lower courts must follow it, including in the Stand News case, which is awaiting judgment. It is expected that similar cases will have less scope in future to raise disputes over issues such as constitutionality and whether an intention to incite violence must be proved.
Former Director of Public Prosecutions Grenville Cross said he agreed with the Court of Appeal that the rulings in the Privy Council cases were obiter dicta. He also said that with the publication of the draft legislation for Article 23 of the Basic Law, “incitement to violence” would not be a necessary element of the sedition offence in future. He believed there was no need to change the wording, as doing so could create a legal vacuum and weaken the ability to safeguard national security.
譚得志煽動案上訴被駁回，上訴庭並裁定香港煽動罪屬成文法，而普通法下煽動暴力意圖並非定罪的必要元素，又指煽動罪條文在社會利益和言論自由之間已取得平衡。
法律評論員黃啟暘認為，上訴庭的說法欠說服力，舉例加拿大等地縱有成文法，法庭亦會考慮普通法的發展。黃又指，上訴庭裁決具約束力，下級法院須跟從，包括正候裁決的立場新聞案，預料日後同類案難再就合憲性、須否證明煽暴意圖等議題提出爭議。
前刑事檢控專員江樂士指，同意上訴庭指英國樞密院案例的裁斷，屬附帶意見。他又指，隨著《基本法》第 23 條立法草案出爐，「煽動暴力」並非日後煽動罪的必要元素，他認為毋須改變寫法，否則有機會造成法律真空，削弱維護國安能力。
19 Jul 2023法庭線#8027
男子認煽動、辱國歌等判入教導所 不服定罪及判刑提上訴 押後待「譚得志案」判決
A 19-year-old man was accused of posting “Hong Kong independence” and “Liberate Hong Kong, revolution of our times” slogans on LIHKG, YouTube and Discord, and of altering the lyrics of the national anthem. He also produced and distributed a video replacing the yellow star on the national flag with profanity. He earlier pleaded guilty to four charges, including sedition and insulting the national anthem and national flag, and was sentenced to a training centre. He is appealing against his conviction and sentence. The case was heard at the High Court on Wednesday (19th), and was adjourned pending the judgment in the Tam Tak-chi case.
一名 19 歲青年被指在「連登」、YouTube 及 Discord 平台，發表「港獨」、「光時」口號，及篡改國歌歌詞，製作並發布以粗口字眼取代國旗上黃星的影片，早前承認煽動、侮辱國歌國旗等 4 罪，被判入教導所。青年不服定罪及判刑提上訴，案件周三（19 日）於高等法院處理。
Translations are supplied by the source workbook. Consult the original reporting for context.
