The Court of Appeal on Thursday ruled that the intention to incite violence is not a necessary element for the offence of sedition, as it rejected an appeal by jailed former activist Tam Tak-chi.

The ruling is the first of its kind since the establishment of the SAR, and is legally binding on other cases in lower courts.

Tam, a former vice chairman of People Power, was challenging his 40-month sentence and conviction for sedition over his chanting of slogans in the street in 2020.

His lawyers submitted, among other things, that inciting violence is a necessary element of sedition, as stated in a ruling by the Privy Council in Britain in October.

However, appeal court judges Jeremy Poon, Derek Pang and Anthea Pang rejected the arguments put forward by Tam's lawyers.

They ruled that the Privy Council judgement is limited to Trinidad and Tobago where the case in question originated, and the council's ruling on sedition is only a non-binding judicial opinion.

"Whether an intention to incite violence should be incorporated as an element of offence in a given criminal code must depend on its actual provisions to be interpreted by reference to the specific legal and social landscape in which it exists," the appeal court judges said.

They added that the arguments from Tam's lawyers were misplaced, as incorporating the intention to incite violence would be "wholly against" the legislative intent of Hong Kong's sedition laws.

The judges also rejected the argument that the sedition laws would be unconstitutional if inciting violence was not a necessary element, because they would "lack legal certainty and disproportionately interfere with the fundamental right of freedom of expression."

The sedition laws are proportionate in balancing the "paramount importance of protecting national security and public order" with the right to free speech, the judges said.