Tam Tak-chi, former vice-chairman of the People Power party, known as “Fast Beat,” was convicted of uttering statements like “black cops die a whole family” and “revolution of our times” during a street booth in 2020. He was found guilty of 11 charges, including “uttering seditious words,” and sentenced to 40 months in prison, which he has since served. Tam appealed against his conviction and sentence, both of which were rejected by the Appeal court.

Earlier, Tam applied for a certificate to appeal to the Court of Final Appeal. On Wednesday (10th), the Appeal court issued a judgment stating that the charges, under the precursor to the new sedition crime in the National Security Law, involve significant and broadly important legal issues meriting a decision by the Court of Final Appeal, thus approving his application.

The Court of Final Appeal’s website indicates that a hearing to consider granting leave for a final appeal is scheduled for August 14, with the judge’s confirmation “to be confirmed.”

Tam Tak-chi raises three significant legal issues in his application for a certificate to appeal to the Court of Final Appeal concerning his conviction, including:

1. Are the offenses of sedition under Sections 9 and 10 of the Crimes Ordinance “indictable offenses” that should be handled by the original jurisdiction of the High Court with a jury?

2. Must the prosecution prove the intent to incite, including inciting others to use violence?

3. Following the above, if the answer is “no,” does this disproportionately restrict freedom of speech and not comply with the principle of “prescribed by law,” thus being unconstitutional?

Appeal Court: Charges Precede New Incitement Offense, Warrant Final Appeal Court Decision

The Appeal Court, led by Chief Judge of the High Court Jeremy Poon Siu-chor, with Justices Derek Pang Wai-cheong and Anthea Pang Po-kam delivering the judgment, addressed the opposition from the Department of Justice to Tam Tak-chi’s application, stating there were no reasonably arguable points. They noted that the sedition offenses under the Crimes Ordinance have been repealed, hence suggesting that the case does not involve significant and broadly important legal issues.

However, the Appeal Court considered that whether sedition is an “indictable offense” clearly involves legal interpretation of the offense and the interplay between the National Security Law and local laws. As to whether intent must be proven for sedition, including the incitement of others to violence, the court pointed out that the charges in this case are precursors to the new sedition offenses under the National Security Law, thereby also warranting a decision by the Court of Final Appeal.

In summary, the Appeal Court recognized that the case involves significant and broadly important legal issues, thus approving the appeal to the Court of Final Appeal based on the three legal points raised by Tam Tak-chi’s side.

Appeal Court Previously Ruled: Intent to Incite Violence Not a Necessary Element Under Common Law

The Appeal Court, in its judgment dated March 7, 2024, indicated that the Wallace-Johnson case cited by the appellant only offered obiter dicta, and that the intention to incite must be interpreted based on the specific legal framework and societal context. The court ruled that the intent to incite violence is not a necessary element of the statutory offense of sedition under common law, and dismissed Tam Tak-chi’s application.

The judgment further stated that the law on sedition must maintain enough flexibility to address current national security threats, thus the terminology around the intent to incite must be sufficiently broad to cover various times and circumstances. The court ultimately ruled that the charges of sedition have achieved a balance between societal interest and freedom of speech, noting, “It does not appear that anyone, including Tam Tak-chi, a vocal critic of the government, would bear an unacceptably harsh burden due to restrictions imposed on incendiary speech.”