Page:HKSAR v. Tong Ying Kit (Verdict).pdf/52

-52- G.3 The requisite mens rea of incitement

145. We now turn to examine the mens rea of the Defendant at the material time.

146. First of all, the way in which the Defendant mounted the flag at his back is clear proof that he intended to attract public attention and intended the flag to be seen by as many people as possible. It should also be noted that it was the Defendant who set the context as described above for the display of the flag. The date, the time, the place and the manner were not just randomly picked. On the evidence adduced, we find ourselves able to draw the only reasonable inference that the Defendant deliberately chose 1 July 2020 to take action. Based on his WhatsApp exchanges with Dinosaur BB, we also find that the time and the place were particularly chosen by the Defendant in order to attract the attention of as many people as possible.

147. Secondly, the sending from the Defendant’s mobile phone of a screenshot showing the purple flag (which relates to warnings about NSL offences) demonstrates that the Defendant was alive to possible breaches of the NSL at the material time.

148. Thirdly, the mentioning of a “safe spot” in his exchanges with Dinosaur BB as early as 1334 hours on that day and the fact that he was kept informed about the various police checklines and road blocks are not only probative of his act being a pre-planned one but also that he was intending to offend the law. If the Defendant only had an innocent