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41. One could therefore discern, so far as other offences (within the same chapter of the NSL) were concerned, they were not necessarily confined to criminal acts or acts involving the use of force. On a proper construction of all the offence-creating articles in Chapter III of the NSL, we came to the conclusion that the phrase “other unlawful means” referred not just to criminal acts but included means other than “by force or threat of force” in order to establish and improve the legal system and enforcing mechanisms for safeguarding national security and to prevent the offence of subversion.
42. As to the exact ambit of the unlawful means, namely whether any civil wrong would be sufficient, we did not think it necessary for us to express a definite view on this issue. Suffice for us to say that in the present case, we were only required to decide whether a breach of the Basic Law was capable of constituting an unlawful means.
Unlawfulness as an External Element
43. There was no dispute that for the purpose of a charge under NSL 22, the prosecution had to prove that the means in question was an unlawful one. However, the defence argued that the prosecution had to prove that the defendants knew at the material time that the means in question was unlawful. Hence, so the argument went, an honest albeit mistaken belief about the lawfulness of the means (advocated by Benny Tai, D1) should be afforded to the defence.
44. In our judgment, the prosecution were required to prove that the defendants intended to carry out the means which was the subject of the charge. Besides, there was also an additional mental element that the defendants so acted with “a view to subverting the State power”. Thus,
