Page:HKSAR v. Tong Ying Kit (Verdict).pdf/9

-9- 13. Turning to the mens rea of the offence under Article 20, we are of the view that, based on the clear wording used in the Article, the culpable mind is one which does the prohibited act(s) with a view to committing secession or undermining national unification.

14. Article 21 provides:

15. Its English translation reads:

16. In respect of the mens rea and actus reus of the offence of incitement, we would like to refer to the helpful summary given in the Court of Appeal’s judgment in HKSAR v Jariabka Juraj in which Lunn, VP cited what Tuckey LJ said in DPP v Armstrong, and reiterated:

“63. Of the offence of incitement, Tuckey LJ said: ‘The actus reus of the offence is the indictment (sic) by the defendant of another to do something which is a criminal offence. He must do so with the intention that if the other person does as he asks he will commit a criminal offence. That is the mens rea. On this analysis the intention of the person incited is entirely irrelevant.’