判詞原文（節錄）：Meaning of the Slogan and incitement to commit secession
As concluded in paragraph 34 above, the issue before the court is: having regard to the natural and reasonable effect of displaying the flag with the Slogan on it in the particular circumstances of this case and when viewed as a whole, is such display of the Slogan capable of inciting others to commit secession. However, before we could deal with this issue, we have to first examine whether the Slogan as at 1 July 2020 was capable of carrying the relevant secessionist meaning, namely, separating the HKSAR from the PRC.
We accept Professor Lau’s opinion that the two parts of the Chinese Slogan (ie “光復香港” and “時代革命”) have a close semantic connection and cannot be construed separately. They must be viewed as a phrase of words or slogan as a whole.
In answering the question posed above, we do not find the analysis of the Defence Experts particularly helpful because as explained by Professor Francis L F Lee in his examination-in-chief, the emphasis of the analysis was to test a “key hypothesis”, namely whether the Slogan had one meaning only and that was how everybody understood it. The analysis was not directed at the question as to whether the Slogan was capable of having the meaning ascribed to it by Professor Lau.
We should reiterate that what we are concerned with in this case is not whether the Slogan meant one and only one thing as contended by Mr Grossman but whether the Slogan, when taken as a whole after considering all the relevant circumstances, was capable of inciting others to commit secession. The authorities which we have examined did not speak in terms of “one meaning only”. Instead, the focus was on whether the words/message/article/advertisement was capable of inciting others to commit the offence in question.
There is in fact no dispute amongst the 3 experts that at the material time on 1 July 2020, as a whole, the Chinese Slogan was at the very leastcapable of having the meaning ascribed to it by Professor Lau, namely, “the objective of separating the HKSAR from the PRC.” In the circumstances, it is not necessary for the court to resolve the differences between the approach of Professor Lau on the one hand and the approach of the Defence Experts on the other.
In coming to this view, we take into account that the Defence Experts have never disputed that the Slogan is capable of bearing a secessionist meaning:
(1) At paragraph 61 of the Defence Expert Report, the Defence Experts accept it is undeniable that in his campaign speeches on 20 February 2016, Leung spoke in favour of Hong Kong’s political independence.
(2) Under cross-examination, Professor Eliza W Y Lee agreed that the Slogan put forward by Leung would, to some people, carry the meaning stated at paragraph 36 of Professor Lau’s report, namely inter alia, “the subject words were clearly put forward for the objective of advocating one or more political agendas [of Leung]; such political agendas in turn have the advocacy of Hong Kong independence and secession as their main content.”
(3) At paragraph 114 of the Defence Expert Report, the Defence Experts expressly accept that “Hong Kong Independence” is one of the ideas that may be associated with the Slogan.
(4) In her examination-in-chief, Professor Eliza W Y Lee fairly accepted that regarding the compound word “光復”, it can mean recovering a regime that is lost, although it does not necessarily have that meaning.
(5) Under cross-examination, Professor Eliza W Y Lee again fairly accepted that regarding the compound word “革命”, it can mean overthrowing the government, although it does not necessarily mean so.
In the present case, Professor Lau and the Defence Experts have, rightly in our view, emphasised the importance of “context” when construing the meaning of the Slogan. In this regard, it is important to take into account the following:
(1) the Slogan was printed on a flag carried at all material times on the back of a motorcyclist travelling on a busy public highway on 1 July 2020 plainly in the view of the general public;
(2) on 1 July 2020, there were protests on Hong Kong Island. According to PW1, Woman Superintendent Tam, the protests on Hong Kong Island were against the NSL, and the protests were illegal because an organiser had applied for the holding of a public event but was unsuccessful;
(3) the route chosen by the Defendant after crossing the Eastern Harbour Crossing involved some major thoroughfares on Hong Kong Island, including the Eastern Corridor, the Central-Wanchai Bypass, Connaught Road Central, Queensway, and Hennessy Road;
(4) the Defendant did not travel along Hennessy Road in a single direction. Rather, having travelled in an easterly direction along Hennessy Road towards Causeway Bay, the Defendant turned into Lockhart Road and travelled in a westerly direction before turning into Jaffe Road to resume travelling in an easterly direction;
(5) while the flag was displayed, the Defendant had deliberately failed to stop his motorcycle at multiple police checklines, showing obvious and open defiance to lawful instructions given by law enforcement officers duly tasked to maintain law and order in Hong Kong;
(6) the significance of the date is obvious: 1st July is the anniversary date of the establishment of the HKSAR and the resumption of sovereignty over Hong Kong by the PRC; and
(7) 1 July 2020 was of course also the very next day after the NSL had come into effect, a law which specifically deals with matters of national security including, in particular, secession.
Having regard to the natural and reasonable effect of displaying the flag in the particular circumstances of this case and taking into account the above contextual matters, we have no difficulty in coming to the sure conclusion that the Slogan as at 1 July 2020 was capable of carrying the meaning of separating the HKSAR from the PRC and was capable of inciting others to commit secession.
Mr Grossman argued that the Slogan was so vague that it was not capable of carrying any secessionist meaning. With respect, this submission is contrary to the Defence Experts’ evidence that one of the possible meanings of the Slogan was Hong Kong Independence which is clearly secessionist in nature.
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. There is no requirement that the incitor must specify the means, for instance, by stabbing, by poisoning, or by strangulation, through which the murder is to be carried out before he could be so convicted. Needless to say, it is also not a legal requirement for the offence of incitement that there be parity of mens rea on the part of the incitee. Nor is the Prosecution required to prove that the incitee indeed carries out the offence incited.
The particulars in count 1 allege “separating the HKSAR from the PRC” or “altering by unlawful means the legal status of the HKSAR”. Since we have found that the “separating” limb has been made out, we do not consider it necessary to deal with this alternative basis of “altering the legal status of the HKSAR”.