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The Seriousness of NSL 22(3)
35. It was submitted by some of the defendants that the seriousness of NSL 22 could be discerned from the descending order of the Article given the fact that NSL 22(1) and (2) aimed at preventing the attack of the fundamental political structure and system of the Central People’s government, hence they were the most serious two. As NSL 22(4) only confined to the attacks of government premises and facilities, they were of the least serious.
36. We did not agree. Firstly, we noted that the same penalty was applicable to all limbs of NSL 22 without distinction. Secondly if there were in fact any differences in seriousness among the four limbs, then it would be difficult to understand why the four limbs were not arranged in the order of their seriousness as counsel for some defendants had suggested that NSL 22(3) was the least serious one. Thirdly we were of the view that it was unhelpful to compare the relative seriousness of the four limbs of NSL 22. The seriousness of the offence depended on many factors: the degree of planning, the ways and means employed, the number and extent of the attacks, the number of people involved, the potential harms generated, the actual outcomes and consequences. It had to be a holistic assessment, after a careful consideration of all the circumstances.
37. In this case, candidates for the Primary Election were essential character of the Scheme, without them, the Scheme simply could not get off the ground. They lent their support to and actively participated in the Scheme. They therefore in our view should be categorised into the “active participant” category. Had the Scheme been
