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NSL 22 was not an offence of strict liability but rather an offence with specific intent. Had the prosecution failed to prove the double intent, the offence would not be established.
45. That said, after careful consideration, we came to the conclusion that the prosecution was not required to prove that the defendants knew that the means was unlawful. It was clear to us that the use of the word “unlawful” in NSL 22 was an adjective to qualify the actus reas of the offence rather than the requisite mens rea. The situation was similar to, for example, the offence of unlawful sexual intercourse with a girl under the age of 13 where the prosecution were not required to prove that the defendant was aware the sexual intercourse being an unlawful one. Had it been otherwise, an accused would have a defence based on his or her ignorance of the law.
46. As aforesaid, it was our judgment that knowledge of the unlawfulness of the means in question was not an element of the offence under NSL 22. Furthermore, having regard to the purpose of the NSL, we considered that the gravamen of the offence of subversion lied on the fact that an accused intentionally committed an act which was prohibited by the article and that he or she did so with a view to subverting the State power. Therefore, it was irrelevant to the issue of guilt that the accused acted with a mistaken belief that his or her means was lawful; to hold otherwise would go against the purpose of the NSL.
Subverting the State Power
47. Another legal challenge raised by the defence was the use of the phrase “to subverting the State power” in the offence. It was essentially argued that as there was no definition for the words
