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was brought, we thought it appropriate to state first what the elements of the offence were and had to be proven by the prosecution.
9. In the context of the present case, the elements of the substantive offence under NSL 22(3) were:
- (i) organised, planned, committed or participated in;
- (ii) any act by the use of force or threat of use of force or other unlawful means;
- (iii) which seriously interfered in, disrupted or undermined the performance of duties and functions in accordance with the law by the body of power of the HKSAR;
- (iv) with a view to subverting the State power.
10. As regards the above, we were of the view that: element (i) was part of the actus reus of the offence; element (ii) related to the nature of the means adopted by the defendants; element (iii) related to the nature of the overt act and its consequence. This, together with element (i), constituted the actus reus of the offence. Furthermore, we were of the view that the actus reus had to be intentional so that any lesser forms of mens rea (for example recklessness and negligence) would not be sufficient; and element (iv) was an additional mental element which made the offence one of “specific intent”.
11. In the present case, there was no allegation by the prosecution that the alleged conspiratorial agreement which was the subject matter of the charge entailed any acts by force or threat of force. Therefore, in simple terms that part of NSL 22 relied upon by the
