Page:HKSAR v. Tong Ying Kit (Verdict).pdf/51

-51- capable of carrying the meaning of separating the HKSAR from the PRC and was capable of inciting others to commit secession.

142. 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.

143. 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.

144. 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”.