Where the Gavel Wields: The Jurisdictional Conundrum of Sedition in Hong Kong

Abstract

The offence of sedition in Hong Kong, a colonial relic that has languished in a state of dormancy since the 1960s, has made an abrupt return to the city’s legal landscape following the enactment of the Hong Kong National Security Law. The confluence of these two regimes has engendered myriad nuanced legal intricacies that belie straightforward resolution, one of which occupies the focal point of this article: whether or not the District Court, an intermediate trial court with limited criminal jurisdiction, can hear sedition cases. This article engages this issue and contends that a coherent reading of the now multitude of legislative instruments constituting Hong Kong’s national security and criminal procedural regime yields a negative answer. Only the Court of First Instance, a superior court of record with unlimited criminal jurisdiction, is competent to hear sedition cases. In reaching this conclusion, this article engages with and diagnoses the errors in the diverse strands of reasoning put forward in the cases of HKSAR v Tam Tak Chi and HKSAR v Chan Tai Sum in defence of the District Court’s jurisdiction.